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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Feb-25-2016 1:21 pm
Case Number: CGC-13-535823
Filing Date: Feb-25-2016 1:20
Filed by: DAVID YUEN
Image: 05288491
MEMORANDUM OF POINTS AND AUTHORITIES
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PATRICK KELLY VS. JACK EUGENE TEETERS, AS EXECUTOR OF THE
THOMAS F. et al
001005288491
Instructions:
Please place this sheet on top of the document to be scanned.PATRICK KELLY suplicr cody E
77 Van Ness Ave., #1250 r ‘ California
San Francisco, CA 94102 nly Francisco
(415) 769-9524 : FEB 25 2016
mailforpatkelly@gmail.com CLERKOF THE COURT
Plaintiff In Pro Per BY:
Clerk
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
PATRICK KELLY, Case No.: CGC 13-535823
Plaintiff MEMORANDUM OF POINTS AND
> AUTHORITIES IN SUPPORT OF
OPPOSITION TO DEFENDANTS
vs. DEMURRER TO FIRST AMENDED
COMPLAINT
JACK EUGENE TEETERS, as Executor, of the
. Date Action Filed: 12/2/2013
. Whi 5
Thomas F. White Estate; Trial Date: Not Set
; Res. No. 10270323-10
Does 1-25 Inclusive, 1
oes Bee MRemsive Hearing Date: March 23, 2016
Defendants. Judge: Ernest H. Goldsmith
Time: 9:30 a.m.
Place: Dept. 302
I
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This is defendants’ second demurrer in this case and amounts to little more than an attempt
to relitigate arguments that both this Court and the Appeal Court have already decided. Defendants
repeated the same arguments they made during the first demurrer in this case and later during their
opposition to plaintiff's appeal.
OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823oem ND HW BF WN
II. PROCEDURAL HISTORY
11/06/2009 — Original Case Filed — CGC09-494198 — 2005 & 2007 Breach of Contracts
Claims
11/16/2011 — Demurrer to Complaint
12/12/2011 — Demurrer Sustained w/o Leave to Amend as to Promissory Estoppel COA;
Overruled as to all other COAs
03/21/2012 — FAC Filed
03/22/2012 — Demurrer to Complaint
04/19/2012 — Demurrer Overruled in its Entirety
07/19/2012 — Summary Adjudication Filed Alleging 2005 Contract Premature Since White
Not Yet Released From Prison
10/17/2012 — Order Granting Summary Adjudication
02/20/2013 — Judgment on Nonsuit in Favor of Defendant
04/18/2013 — Notice of Appeal
09/10/2013 — Defendant White Dies
12/02/2013 — Instant Case Filed - CGC13-535823 after Creditor Claim Denied
01/09/2014 — First Demurrer Filed
02/05/2014 —Demurrer Sustained to All Causes of Action W/O Leave to Amend
02/13/2014 — Judgment Entered
03/13/2014 — Order Denying Motion for Reconsideration
04/02/2014 — Notice of Appeal Filed
01/28/2015 — Remitter Issued in Original Case — Judgment Affirmed CGC09-494198
04/21/2015 — Remitter Issued — Judgment Affirmed on 1, 2"4, 34, 5, 6" & 8" Causes of
Action; Reversed on 4" & 7" Causes of Action CGC13-535823
05/15/2015 — Motion for Leave to File First Amended Complaint
07/10/2015 — Order Granting Leave to File COA 1-4; Denying Leave to File COA 5-10
09/24/2015 — Order Denying Plaintiff's Request to Reconsider
09/29/2015 — First Amended Complaint Filed
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OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-5358230 Oo ND YN
10/27/2015 — Motion to Strike FAC — Set for 03/23/2016
11/02/2015 — Demurrer to FAC — Set for 03-23-2016
12/31/2015 — Ex Parte Application for Order Shortening Time
01/07/2016 — Withdrawal of Ex Parte Application for Order Shortening Time
III. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT
Defendants conveniently neglect to include as an exhibit the highly pertinent February 5,
2014 order by this Court in the first demurrer that extinguishes defendants’ extensive res judicata
arguments they now try to raise for a third time. In that Order this Court clearly ruled (Plaintiff's
Declaration Exhibit “A” p.2:4-6):
“Res judicata does not apply because (1) the judgment in case #494198 is not final
and (2) the judgment with regard to the 2005 contract was not on the merits.”
Defendants claim in their memorandum of points and authorities (Defendant’s
Memorandum p.4:7-8):
“this Court declined to consider the order and judgment in the previous case for res
judicata purposes”.
That is a highly convenient way of stating that this Court did consider res judicata and found
it did not apply.
A. RES JUDICATA
The 2005 Breach of Contract claim has yet to be decided on the merits and is now the
subject of this demurrer after the Court of Appeal ruled that cause of action should proceed.
However, defendants propose that since both Courts failed to accept defendants’ res judicata
arguments that somehow means the matter should be ruled upon a second time by this Court. What
defendants fail to understand is that since the Court of Appeal decided not take up that issue, this
Court’s ruling on res judicata stands and defendants are not entitled to a second ruling on the same
issue.
-3-
OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823It seems no one should doubt defendant counsel’s reputation and expertise at having claims
dismissed on technicalities before they can ever be heard on the merits. In this instance defendants
originally argued in summary adjudication during the previous case that the 2005 contract was
premature and could not be pursued until after White was released from prison. The Appeal Court
characterized defendants’ position in their summary adjudication motion as follows on page 5 in the
last sentence of the first paragraph (Declaration of Geoffrey Rotwein, Exhibit “E”):
“White stated that since he had not been released from prison, his duty of payment
had not arisen and the suit for breach of contract was premature.”
Now that the 2005 contract claim has become timely after White’s death, defendants want to
change their argument from the claim being “premature” to the claim becoming invalid based upon
res judicata. Plaintiff argues that defendants’ position where they want to have it both ways is
untenable.
After the remaining 2007 contract went to trial and was ruled invalid under Mexican law, all
of plaintiff's other causes of action in the original case were dismissed on nonsuit since there was
no longer a valid contract claim they could be tied to (See Declaration of Geoffrey Rotwein, Exhibit
“C” p.2:10-17). Plaintiff notes that if the 2005 contract had not been ruled premature in summary
adjudication, the related causes of action would have proceeded to trial on the merits where a jury
could have awarded damages. It doesn’t make sense that after having all of plaintiffs causes of
action dismissed on a technicality in the previous case because there wasn’t a valid contract claim
they could be attached to after the 2007 contract claim was ruled unenforceable under Mexican law;
and after the 2005 contract claim was previously ruled premature; that defendants now take the
position plaintiff should not be allowed to pursue the 2005 contract claim either even though that
claim is now timely and the Appeal Court has ruled it can proceed.
Plaintiff does not want to repeat all the arguments he already made in the previous demurrer
in this case that show why res judicata does not apply since the issue has already been decided.
However, if this Court elects to take up the issue once again, Plaintiff requests the Court take
judicial notice of plaintiff's extensive arguments against res judicata made during the previous
demurrer.
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OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823oO IND YN
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B. CONDITION PRECEDENT
After the Appeal Court heard defendant’s arguments and granted much of what they had
asked for, defendants are still not satisfied and now argue (Defendants’ Memorandum p.9:3-12):
“H. The Decision by the Court of Appeal Is Not Law of the Case”
Defendants do yeoman’s work by once again repeating arguments previously made in
multiple hearings claiming that a “condition precedent” extinguished defendants’ obligation to pay
on the 2005 contract even though the Appeal Court could not have been clearer that Plaintiff's
agreement to defer payment to a later date was not a condition precedent to payment. Defendants’
request for the Appeal Court to reconsider the issue was denied and their current attempt to gain a
more favorable ruling from this Court seems frivolous at best. Once again, if this Court decides to
take up defendants’ condition precedent arguments for a second time, Plaintiff requests the Court
take judicial notice of his arguments against condition precedent made in written submissions to the
Court during the previous demurrer.
Plaintiff argues that the Appeal Court’s Decision is the deciding decision and should not be
disregarded in this second demurrer on the same issues brought in the previous demurrer. The
Appeal Court has already ruled on these issues and there is no valid reason for this Court to take
them up again (Plaintiff's Declaration Exhibit “B” p.14-18). The Appeal Court rendered a detailed
explanation of why a condition precedent does not apply in this case (Plaintiff's Declaration Exhibit
“B” p.14):
"It is fundamental that a contract "must be so interpreted as to give effect to the mutual
intention of the parties as it existed at the time of contracting, so far as the same is
ascertainable and lawful." (Civ. Code,§ 1636.) Appellant alleged that "[d]ue to the
temporary nature of White's incarceration along with the expectation that his attorneys
could succeed at having him released at any time, there was always the understanding at
any given point that it was reasonable to assume he would be released in less than one
year." Appellant also alleged that at the time he agreed to the extension of time for
payment of the balance of the bonus, White "reminded" him of his previous promise to
finish funding appellant's website and to partner in various businesses with appellant
once he was released from prison. These allegations portray an expectation that White's
incarceration would not be long-lasting. Combined with the allegations that appellant
had fully earned the promised $350,000 before he agreed to defer payment, it is simply
not reasonable to view the contract as making White's release from prison a condition
precedent rather than a simple promise as to time of payment. As we have said, courts
are particularly "' “disinclined to construe the stipulations of a contract as conditions
-5-
OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823precedent, unless compelled by the language of the contract plainly expressed" ... when
the result would be to work a forfeiture.’ " (Division of Labor Law Enforcement,
Department of Industrial Relations v. The Ryan Aeronautical Co., supra, 106 Cal.App.2d
Supp. at pp. 835-836, quoting San Diego Construction Co. v. Mannix, supra, 175 Cal. At
p. 556.)
IV. SECOND CAUSE OF ACTION FOR VIOLATION OF PUBLIC POLICY
A. Res Judicata
Res Judicata does not apply because this claim only became timely when White died on
September 10, 2013 as dictated by this Court’s summary adjudication ruling. The Appeal Court has
tuled that the 2005 bonus contract claim can proceed and as such plaintiff has a right to sue
defendants for violating California public policy related specifically to the 2005 bonus. This Court
has already ruled that res judicata does not apply to claims not heard on the merits.
Defendants’ argument that plaintiff could have previously brought the present claim for
violation of public policy in the previous case overlooks the fact their own actions made that
impossible. Summary adjudication ruled the claim was premature until White was released from
prison or as it turns out after White died and after plaintiff's creditor claim was rejected by the
estate. Obviously if the 2005 bonus claim was premature prior to White’s death on September 10,
2013 so was the violation of public policy claim tied specifically to that claim.
B. Statute of Limitations
Since this claim only became ripe after White’s death or more precisely after plaintiff's
creditor claim was rejected in probate by the estate of Thomas F. White on November 27, 2013
(Plaintiff Declaration Exhibit “C”), this claim is timely since the instant case was filed on December
2, 2013 well within the statute of limitations.
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OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823V. THIRD CAUSE OF ACTION FOR NONPAYMENT OF WAGES
A. Res Judicata
Res Judicata does not apply because this claim only became timely when White died on
September 10, 2013 as dictated by this Court’s summary adjudication ruling. The Appeal Court has
ruled that the 2005 bonus contract claim can proceed and as such plaintiff has a right to sue
defendants for nonpayment of wages related specifically to the 2005 bonus which legally qualifies
as wages according to Labor Code §§ 201 and 202. This Court has already ruled that res judicata
does not apply to claims not heard on the merits.
Defendants’ argument that plaintiff could have previously brought the present claim for
nonpayment of wages in the previous case overlooks the fact their own actions made that
impossible. Summary adjudication ruled the claim was premature until White was released from
prison or as it turns out after White died and after plaintiff's creditor claim was rejected by the
estate. Obviously if the 2005 bonus claim was premature prior to White’s death on September 10,
2013 so was the nonpayment of wages claim tied specifically to the unpaid 2005 bonus.
B. Statute of Limitations
Since this claim only became ripe after White’s death or more precisely after plaintiff's
creditor claim was rejected in probate by the estate of Thomas F. White on November 27, 2013 this
claim is timely since the instant case was filed on December 2, 2013 well within the statute of
limitations.
VI. FORTH CAUSE OF ACTION FOR QUANTUM MERUIT
Defendants state (Defendant Memorandum p10:17-21):
“The Court of Appeal recognized this Court’s ruling that the condition precedent
argument applied to the quantum meruit claim. (Decision, filed herein April 21,
2015, p. 18, par. 2.)”
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OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823“Therefore, the condition precedent for which the parties agreed that defendant’s
duty to perform on the contract would not arise until his release from prison applies
equally to his duty to pay for plaintiffs alleged services, which will never occur
because defendant died in prison.”
Contrary to defendants’ misleading interpretation of what the Court of Appeal actually said,
the Court of Appeal disagreed with this Court’s ruling on condition precedent which would hardly
amount to an endorsement or recognition of that ruling. What the Court of Appeal actually said is:
“The erroneous conclusion that White's release from prison was a condition
precedent to his obligation to pay the balance of appellant's earned bonus was also
the basis for the trial court's sustaining of the demurrer to the causes of action for
breach of the 2003 employment contract, misrepresentation, quantum meruit, and
breach of the implied covenant of good faith and fair dealing.”
The Appeal Court went on to explain and held in its ruling:
“As to the services performed in connection with the 2005 bonus agreement,
however, payment was not due until White was released from prison. The cause of
action for quantum meruit based on these services, asserted in the complaint filed
within two months of White's death and the rejection of appellant's creditor's claim
by the executor of White's estate, was timely. (§ 366.2.)”
VII. Courts Give Complaint Reasonable Interpretation Against Demurrer
It is not necessary that the cause of action be the one intended by plaintiff. The test is
whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be
mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the
essential facts of some valid cause of action are alleged, the complaint is good against a general
demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39. The rules by
which the sufficiency of a complaint is tested against a general demurrer are well settled. We not
only treat the demurrer as admitting all material facts properly pleaded, but also "give the complaint
a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of
Fire Underwriters (1946) 29 Cal.2d 34, 42, 172 P.2d 867.) (Blank v. Kirwan (1985) 39 Cal.3d
311,318,216 Cal.Rptr. 718,703 P.2d 58.)
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OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823Bw N
If the complaint states a cause of action under any theory, regardless of the title under which
the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. "[W]e
are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a
demurrer, but instead must determine if the factual allegations of the complaint are adequate to state
a cause of action under any legal theory. The courts of this state have long since departed from
holding a plaintiff strictly to the 'form of action’ he has pleaded and instead have adopted the more
flexible approach of examining the facts alleged to determine if a demurrer should be sustained."
(Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817,
original italics; LiMandri v. Judkins (1997) 52 Cal.App.4"" 326, 339, 60 Cal.Rptr.2d 539.)
Ifa complaint does not state a cause of action, but there is a reasonable possibility that
the defect can be cured by amendment, leave to amend must be granted. (Blank v. Kirwan,
2 supra. 39 Cal.3d at p. 318, 216 Cai.Rptr. 718. 703 P.2d 58.)
VIII. CONCLUSION
Defendants’ demurrer makes it very clear that they do not agree with the Court of Appeal’s
decision that ruled some of plaintiff's causes of action are valid and should proceed. They argued
to the Court of Appeal to reconsider that decision and the request was denied. They had the option
of appealing to a higher court but elected not to do so. Their present attempt to accomplish what
they were unable to accomplish at the appellant level through another demurrer in this Court
appears frivolous and not well thought out.
Defendants argue (Defendants’ Memorandum p.6:2-4):
“In short, res judicata and collateral estoppel preclude parties and their privies from
relitigating a cause of action or issue that has been finally determined by a court of competent
jurisdiction.”
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OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823oO ND NH
What defendants fail to understand or refuse to accept throughout their Memorandum is (1)
the court of competent jurisdiction in the issues they are attempting to relitigate is the Court of
Appeal; (2) defendants are the ones who are precluded from relitigating a cause of action that has
been finally determined.
Defendants’ demurrer is little more than an attempt to reargue points already decided against
them by this Court and the Court of Appeal and therefore should be overruled in its entirety.
Respectfully,
DATED: February 23, 2016
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OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Feb-25-2016 1:21 pm Case Number: CGC-13-535823 Filing Date: Feb-25-2016 1:20 Filed by: DAVID YUEN Image: 05288491 MEMORANDUM OF POINTS AND AUTHORITIES _| PATRICK KELLY VS. JACK EUGENE TEETERS, AS EXECUTOR OF THE THOMAS F. et al 001005288491 Instructions: Please place this sheet on top of the document to be scanned.PATRICK KELLY suplicr cody E 77 Van Ness Ave., #1250 r ‘ California San Francisco, CA 94102 nly Francisco (415) 769-9524 : FEB 25 2016 mailforpatkelly@gmail.com CLERKOF THE COURT Plaintiff In Pro Per BY: Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) PATRICK KELLY, Case No.: CGC 13-535823 Plaintiff MEMORANDUM OF POINTS AND > AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS vs. DEMURRER TO FIRST AMENDED COMPLAINT JACK EUGENE TEETERS, as Executor, of the . Date Action Filed: 12/2/2013 . Whi 5 Thomas F. White Estate; Trial Date: Not Set ; Res. No. 10270323-10 Does 1-25 Inclusive, 1 oes Bee MRemsive Hearing Date: March 23, 2016 Defendants. Judge: Ernest H. Goldsmith Time: 9:30 a.m. Place: Dept. 302 I MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This is defendants’ second demurrer in this case and amounts to little more than an attempt to relitigate arguments that both this Court and the Appeal Court have already decided. Defendants repeated the same arguments they made during the first demurrer in this case and later during their opposition to plaintiff's appeal. OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823oem ND HW BF WN II. PROCEDURAL HISTORY 11/06/2009 — Original Case Filed — CGC09-494198 — 2005 & 2007 Breach of Contracts Claims 11/16/2011 — Demurrer to Complaint 12/12/2011 — Demurrer Sustained w/o Leave to Amend as to Promissory Estoppel COA; Overruled as to all other COAs 03/21/2012 — FAC Filed 03/22/2012 — Demurrer to Complaint 04/19/2012 — Demurrer Overruled in its Entirety 07/19/2012 — Summary Adjudication Filed Alleging 2005 Contract Premature Since White Not Yet Released From Prison 10/17/2012 — Order Granting Summary Adjudication 02/20/2013 — Judgment on Nonsuit in Favor of Defendant 04/18/2013 — Notice of Appeal 09/10/2013 — Defendant White Dies 12/02/2013 — Instant Case Filed - CGC13-535823 after Creditor Claim Denied 01/09/2014 — First Demurrer Filed 02/05/2014 —Demurrer Sustained to All Causes of Action W/O Leave to Amend 02/13/2014 — Judgment Entered 03/13/2014 — Order Denying Motion for Reconsideration 04/02/2014 — Notice of Appeal Filed 01/28/2015 — Remitter Issued in Original Case — Judgment Affirmed CGC09-494198 04/21/2015 — Remitter Issued — Judgment Affirmed on 1, 2"4, 34, 5, 6" & 8" Causes of Action; Reversed on 4" & 7" Causes of Action CGC13-535823 05/15/2015 — Motion for Leave to File First Amended Complaint 07/10/2015 — Order Granting Leave to File COA 1-4; Denying Leave to File COA 5-10 09/24/2015 — Order Denying Plaintiff's Request to Reconsider 09/29/2015 — First Amended Complaint Filed -2- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-5358230 Oo ND YN 10/27/2015 — Motion to Strike FAC — Set for 03/23/2016 11/02/2015 — Demurrer to FAC — Set for 03-23-2016 12/31/2015 — Ex Parte Application for Order Shortening Time 01/07/2016 — Withdrawal of Ex Parte Application for Order Shortening Time III. FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT Defendants conveniently neglect to include as an exhibit the highly pertinent February 5, 2014 order by this Court in the first demurrer that extinguishes defendants’ extensive res judicata arguments they now try to raise for a third time. In that Order this Court clearly ruled (Plaintiff's Declaration Exhibit “A” p.2:4-6): “Res judicata does not apply because (1) the judgment in case #494198 is not final and (2) the judgment with regard to the 2005 contract was not on the merits.” Defendants claim in their memorandum of points and authorities (Defendant’s Memorandum p.4:7-8): “this Court declined to consider the order and judgment in the previous case for res judicata purposes”. That is a highly convenient way of stating that this Court did consider res judicata and found it did not apply. A. RES JUDICATA The 2005 Breach of Contract claim has yet to be decided on the merits and is now the subject of this demurrer after the Court of Appeal ruled that cause of action should proceed. However, defendants propose that since both Courts failed to accept defendants’ res judicata arguments that somehow means the matter should be ruled upon a second time by this Court. What defendants fail to understand is that since the Court of Appeal decided not take up that issue, this Court’s ruling on res judicata stands and defendants are not entitled to a second ruling on the same issue. -3- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823It seems no one should doubt defendant counsel’s reputation and expertise at having claims dismissed on technicalities before they can ever be heard on the merits. In this instance defendants originally argued in summary adjudication during the previous case that the 2005 contract was premature and could not be pursued until after White was released from prison. The Appeal Court characterized defendants’ position in their summary adjudication motion as follows on page 5 in the last sentence of the first paragraph (Declaration of Geoffrey Rotwein, Exhibit “E”): “White stated that since he had not been released from prison, his duty of payment had not arisen and the suit for breach of contract was premature.” Now that the 2005 contract claim has become timely after White’s death, defendants want to change their argument from the claim being “premature” to the claim becoming invalid based upon res judicata. Plaintiff argues that defendants’ position where they want to have it both ways is untenable. After the remaining 2007 contract went to trial and was ruled invalid under Mexican law, all of plaintiff's other causes of action in the original case were dismissed on nonsuit since there was no longer a valid contract claim they could be tied to (See Declaration of Geoffrey Rotwein, Exhibit “C” p.2:10-17). Plaintiff notes that if the 2005 contract had not been ruled premature in summary adjudication, the related causes of action would have proceeded to trial on the merits where a jury could have awarded damages. It doesn’t make sense that after having all of plaintiffs causes of action dismissed on a technicality in the previous case because there wasn’t a valid contract claim they could be attached to after the 2007 contract claim was ruled unenforceable under Mexican law; and after the 2005 contract claim was previously ruled premature; that defendants now take the position plaintiff should not be allowed to pursue the 2005 contract claim either even though that claim is now timely and the Appeal Court has ruled it can proceed. Plaintiff does not want to repeat all the arguments he already made in the previous demurrer in this case that show why res judicata does not apply since the issue has already been decided. However, if this Court elects to take up the issue once again, Plaintiff requests the Court take judicial notice of plaintiff's extensive arguments against res judicata made during the previous demurrer. -4- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823oO IND YN 10 Wl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. CONDITION PRECEDENT After the Appeal Court heard defendant’s arguments and granted much of what they had asked for, defendants are still not satisfied and now argue (Defendants’ Memorandum p.9:3-12): “H. The Decision by the Court of Appeal Is Not Law of the Case” Defendants do yeoman’s work by once again repeating arguments previously made in multiple hearings claiming that a “condition precedent” extinguished defendants’ obligation to pay on the 2005 contract even though the Appeal Court could not have been clearer that Plaintiff's agreement to defer payment to a later date was not a condition precedent to payment. Defendants’ request for the Appeal Court to reconsider the issue was denied and their current attempt to gain a more favorable ruling from this Court seems frivolous at best. Once again, if this Court decides to take up defendants’ condition precedent arguments for a second time, Plaintiff requests the Court take judicial notice of his arguments against condition precedent made in written submissions to the Court during the previous demurrer. Plaintiff argues that the Appeal Court’s Decision is the deciding decision and should not be disregarded in this second demurrer on the same issues brought in the previous demurrer. The Appeal Court has already ruled on these issues and there is no valid reason for this Court to take them up again (Plaintiff's Declaration Exhibit “B” p.14-18). The Appeal Court rendered a detailed explanation of why a condition precedent does not apply in this case (Plaintiff's Declaration Exhibit “B” p.14): "It is fundamental that a contract "must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code,§ 1636.) Appellant alleged that "[d]ue to the temporary nature of White's incarceration along with the expectation that his attorneys could succeed at having him released at any time, there was always the understanding at any given point that it was reasonable to assume he would be released in less than one year." Appellant also alleged that at the time he agreed to the extension of time for payment of the balance of the bonus, White "reminded" him of his previous promise to finish funding appellant's website and to partner in various businesses with appellant once he was released from prison. These allegations portray an expectation that White's incarceration would not be long-lasting. Combined with the allegations that appellant had fully earned the promised $350,000 before he agreed to defer payment, it is simply not reasonable to view the contract as making White's release from prison a condition precedent rather than a simple promise as to time of payment. As we have said, courts are particularly "' “disinclined to construe the stipulations of a contract as conditions -5- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823precedent, unless compelled by the language of the contract plainly expressed" ... when the result would be to work a forfeiture.’ " (Division of Labor Law Enforcement, Department of Industrial Relations v. The Ryan Aeronautical Co., supra, 106 Cal.App.2d Supp. at pp. 835-836, quoting San Diego Construction Co. v. Mannix, supra, 175 Cal. At p. 556.) IV. SECOND CAUSE OF ACTION FOR VIOLATION OF PUBLIC POLICY A. Res Judicata Res Judicata does not apply because this claim only became timely when White died on September 10, 2013 as dictated by this Court’s summary adjudication ruling. The Appeal Court has tuled that the 2005 bonus contract claim can proceed and as such plaintiff has a right to sue defendants for violating California public policy related specifically to the 2005 bonus. This Court has already ruled that res judicata does not apply to claims not heard on the merits. Defendants’ argument that plaintiff could have previously brought the present claim for violation of public policy in the previous case overlooks the fact their own actions made that impossible. Summary adjudication ruled the claim was premature until White was released from prison or as it turns out after White died and after plaintiff's creditor claim was rejected by the estate. Obviously if the 2005 bonus claim was premature prior to White’s death on September 10, 2013 so was the violation of public policy claim tied specifically to that claim. B. Statute of Limitations Since this claim only became ripe after White’s death or more precisely after plaintiff's creditor claim was rejected in probate by the estate of Thomas F. White on November 27, 2013 (Plaintiff Declaration Exhibit “C”), this claim is timely since the instant case was filed on December 2, 2013 well within the statute of limitations. -6- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823V. THIRD CAUSE OF ACTION FOR NONPAYMENT OF WAGES A. Res Judicata Res Judicata does not apply because this claim only became timely when White died on September 10, 2013 as dictated by this Court’s summary adjudication ruling. The Appeal Court has ruled that the 2005 bonus contract claim can proceed and as such plaintiff has a right to sue defendants for nonpayment of wages related specifically to the 2005 bonus which legally qualifies as wages according to Labor Code §§ 201 and 202. This Court has already ruled that res judicata does not apply to claims not heard on the merits. Defendants’ argument that plaintiff could have previously brought the present claim for nonpayment of wages in the previous case overlooks the fact their own actions made that impossible. Summary adjudication ruled the claim was premature until White was released from prison or as it turns out after White died and after plaintiff's creditor claim was rejected by the estate. Obviously if the 2005 bonus claim was premature prior to White’s death on September 10, 2013 so was the nonpayment of wages claim tied specifically to the unpaid 2005 bonus. B. Statute of Limitations Since this claim only became ripe after White’s death or more precisely after plaintiff's creditor claim was rejected in probate by the estate of Thomas F. White on November 27, 2013 this claim is timely since the instant case was filed on December 2, 2013 well within the statute of limitations. VI. FORTH CAUSE OF ACTION FOR QUANTUM MERUIT Defendants state (Defendant Memorandum p10:17-21): “The Court of Appeal recognized this Court’s ruling that the condition precedent argument applied to the quantum meruit claim. (Decision, filed herein April 21, 2015, p. 18, par. 2.)” -7- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823“Therefore, the condition precedent for which the parties agreed that defendant’s duty to perform on the contract would not arise until his release from prison applies equally to his duty to pay for plaintiffs alleged services, which will never occur because defendant died in prison.” Contrary to defendants’ misleading interpretation of what the Court of Appeal actually said, the Court of Appeal disagreed with this Court’s ruling on condition precedent which would hardly amount to an endorsement or recognition of that ruling. What the Court of Appeal actually said is: “The erroneous conclusion that White's release from prison was a condition precedent to his obligation to pay the balance of appellant's earned bonus was also the basis for the trial court's sustaining of the demurrer to the causes of action for breach of the 2003 employment contract, misrepresentation, quantum meruit, and breach of the implied covenant of good faith and fair dealing.” The Appeal Court went on to explain and held in its ruling: “As to the services performed in connection with the 2005 bonus agreement, however, payment was not due until White was released from prison. The cause of action for quantum meruit based on these services, asserted in the complaint filed within two months of White's death and the rejection of appellant's creditor's claim by the executor of White's estate, was timely. (§ 366.2.)” VII. Courts Give Complaint Reasonable Interpretation Against Demurrer It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39. The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42, 172 P.2d 867.) (Blank v. Kirwan (1985) 39 Cal.3d 311,318,216 Cal.Rptr. 718,703 P.2d 58.) -8- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823Bw N If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. "[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have long since departed from holding a plaintiff strictly to the 'form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained." (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817, original italics; LiMandri v. Judkins (1997) 52 Cal.App.4"" 326, 339, 60 Cal.Rptr.2d 539.) Ifa complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. (Blank v. Kirwan, 2 supra. 39 Cal.3d at p. 318, 216 Cai.Rptr. 718. 703 P.2d 58.) VIII. CONCLUSION Defendants’ demurrer makes it very clear that they do not agree with the Court of Appeal’s decision that ruled some of plaintiff's causes of action are valid and should proceed. They argued to the Court of Appeal to reconsider that decision and the request was denied. They had the option of appealing to a higher court but elected not to do so. Their present attempt to accomplish what they were unable to accomplish at the appellant level through another demurrer in this Court appears frivolous and not well thought out. Defendants argue (Defendants’ Memorandum p.6:2-4): “In short, res judicata and collateral estoppel preclude parties and their privies from relitigating a cause of action or issue that has been finally determined by a court of competent jurisdiction.” -9- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823oO ND NH What defendants fail to understand or refuse to accept throughout their Memorandum is (1) the court of competent jurisdiction in the issues they are attempting to relitigate is the Court of Appeal; (2) defendants are the ones who are precluded from relitigating a cause of action that has been finally determined. Defendants’ demurrer is little more than an attempt to reargue points already decided against them by this Court and the Court of Appeal and therefore should be overruled in its entirety. Respectfully, DATED: February 23, 2016 -10- OPPOSITION TO DEFENDANTS DEMURRER TO FIRST AMENDED COMPLAINT - CGC13-535823