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LAW OBFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
TEL: 415-929-3197 * FAX! 415-929-3476
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
04/02/2019
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. 04020508-10.
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO
PLAINTIFF'S FIRST AMENDED
COMPLAINT
DATE: MAY 8, 2019
‘TIME: 9:30 A.M.
DEPARTMENT NO.: 302
TRIAL DATE: NONE SET
ATTACHED DOCUMENTS: NO
HON. ETHAN P. SCHULMAN
1/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIEFF’S FIRST AMENDED COMPLAINTLAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
‘TW: 415-929-3197 # FAX: 415-929-3476
1, 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”).
On November 9, 2017, HENRY and MCMACKIN filed and served a
Demurrer in which they argued that each of the four Causes of Action in
BONNICI’s Complaint failed to state a claim.
On October 3, 2018, Judge Harold Kahn of this Court sustained
HENRY and MCMACKIN’s Demurrer as to all four Causes of Action in
BONNICI’s Complaint with leave to amend. In his Order, Judge Kahn ruled:
The allegations in the complaint about the alleged defamatory statements are
conclusory. The allegation that the defamatory statements refer to Mr. Bonnici’s
“conduct as a buyer and seller of jewelry and other items of value, with the intent of
leading other sellers to believe false” that Mr. Bonnici and his associates “conduct
their business in deceptive, illegal false fraudulent manner” provides very little
information about the content of the alleged defamatory statements and none about
the persons to whom such statements were made. While Mr. Bonnici is not required
to provide evidentiary facts, he does need to provide sufficient information for the
court and defendants to know the gist of the alleged defamatory statements and to
whom they were made. For example, do the alleged defamatory statements state that
2/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT‘TEL: 415-929-3197 © FAX: 415-929-3476
LAW OFFICES of R, Michael Lieberman
1398 Post Street, San Francisco, California 94109
25
26
Mr. Bonnici lies to his prospective customers and/or sells goods that are not what he
represents them to be and/or buys goods without the intention of paying for them.
On October 30, 2018, BONNICI filed and (eventually) served a
document captioned “Amended Complaint for Damages” (“First Amended
Complaint”). BONNICI’s First Amended Complaint is as fact-free as his
original Complaint. In fact, it does not even allege the two most basic facts
this Court’s Order specifically identified as necessary to state a defamation
claim: the content of the defamatory statements and the identity of the
people to whom they were made.
Accordingly, and by this Motion, HENRY and MCMACKIN demurrer
to BONNICI’s First Amended Complaint.
Il. BONNICCI’S FIRST AMENDED 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.}"
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
3/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINTLAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
TEL! 425-929-3197 ¢ FAX: 415-929-3476
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 First Amended Complaint does not allege, as is
required in defamation cases, the words by which BONNICI claims defendants
defamed him. BONNICI’s Frist Amended Complaint, instead, alleges at
Paragraph 6 that:
For the past approximately 8 years, and continuing to the filing
of plaintiff's motion to set aside default judgment in this action, at
which point the actions complained of in this complaint against ceased,
the defendants, and each of them, have been spreading rumors and
4/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST’ AMENDED COMPLAINTLAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
‘TEL: 415-929-3197 © FAX! 415-929-3476
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. These allegations include, but are not limited
to, allegations of theft of properties offered for sale.
Defendants respectfully submit that the allegations of defamation in
BONNICI’s Complaint are still 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 plaintiff's
spread “rumors and innuendo, and outright lies about the plaintiff” without
identifying what those rumors, innuendo or lies were. BONNICI’s First
Amended Complaint does not allege any defamation.
BONNICI’s First Amended Complaint compounds this problem by (1)
failing to allege the actual dates of the alleged defamations,! (2) failing to
identify the people to whom the alleged defamations were made and (3)
incorporating plaintiffs defamation Cause of Action into each of the other
Causes of Action in his First Amended Complaint.
As a result, defendants respectfully submit that BONNICCI’S First
Amended Complaint fails to state any causes of action and is uncertain
because it fails to allege the ultimate facts with any specificity whatsoever.
7 Other than saying the alleged defamations continued “[flor the past approximately 8
years,” which doesn’t identify the dates, but does suggest that BONNICI faces a Statute of
Limitations problem, as the Statute of Limitations for defamation is one year. See California
Code of Civil Procedure Section 340(c).
5/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINTTEL! 415-929-3197 * FAX: 415-929-3476
LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
Il. © CONCLUSION
Accordingly, and for all of the foregoing reasons, defendants
respectfully request that this Court sustain this Demurrer. Because BONNICI
has been unable to allege facts sufficient to state a claim in the over two years
his case has been pending in spite of multiple opportunities to amend,
defendants respectfully submit that the time has come for this Court to
sustain this Demurrer without leave to amen
DATE: April 1, 2019
Attorneys for Defendants
CARROLL HENRY and CHARLES
MCMACKIN
6/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINTPROOF OF SERVICE
I, MONICA TAURIELLO, declare:
Iam 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 April 2, 2019, I served the within document(s) entitled:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED
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 perju dws of the State of
California that the foregoing is true at
DATED: April 2, 2019 f ZO \
7/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT
Preview
LAW OBFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 TEL: 415-929-3197 * FAX! 415-929-3476 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 04/02/2019 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. 04020508-10. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT DATE: MAY 8, 2019 ‘TIME: 9:30 A.M. DEPARTMENT NO.: 302 TRIAL DATE: NONE SET ATTACHED DOCUMENTS: NO HON. ETHAN P. SCHULMAN 1/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIEFF’S FIRST AMENDED COMPLAINTLAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 ‘TW: 415-929-3197 # FAX: 415-929-3476 1, 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”). On November 9, 2017, HENRY and MCMACKIN filed and served a Demurrer in which they argued that each of the four Causes of Action in BONNICI’s Complaint failed to state a claim. On October 3, 2018, Judge Harold Kahn of this Court sustained HENRY and MCMACKIN’s Demurrer as to all four Causes of Action in BONNICI’s Complaint with leave to amend. In his Order, Judge Kahn ruled: The allegations in the complaint about the alleged defamatory statements are conclusory. The allegation that the defamatory statements refer to Mr. Bonnici’s “conduct as a buyer and seller of jewelry and other items of value, with the intent of leading other sellers to believe false” that Mr. Bonnici and his associates “conduct their business in deceptive, illegal false fraudulent manner” provides very little information about the content of the alleged defamatory statements and none about the persons to whom such statements were made. While Mr. Bonnici is not required to provide evidentiary facts, he does need to provide sufficient information for the court and defendants to know the gist of the alleged defamatory statements and to whom they were made. For example, do the alleged defamatory statements state that 2/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT‘TEL: 415-929-3197 © FAX: 415-929-3476 LAW OFFICES of R, Michael Lieberman 1398 Post Street, San Francisco, California 94109 25 26 Mr. Bonnici lies to his prospective customers and/or sells goods that are not what he represents them to be and/or buys goods without the intention of paying for them. On October 30, 2018, BONNICI filed and (eventually) served a document captioned “Amended Complaint for Damages” (“First Amended Complaint”). BONNICI’s First Amended Complaint is as fact-free as his original Complaint. In fact, it does not even allege the two most basic facts this Court’s Order specifically identified as necessary to state a defamation claim: the content of the defamatory statements and the identity of the people to whom they were made. Accordingly, and by this Motion, HENRY and MCMACKIN demurrer to BONNICI’s First Amended Complaint. Il. BONNICCI’S FIRST AMENDED 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.}" 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 3/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINTLAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 TEL! 425-929-3197 ¢ FAX: 415-929-3476 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 First Amended Complaint does not allege, as is required in defamation cases, the words by which BONNICI claims defendants defamed him. BONNICI’s Frist Amended Complaint, instead, alleges at Paragraph 6 that: For the past approximately 8 years, and continuing to the filing of plaintiff's motion to set aside default judgment in this action, at which point the actions complained of in this complaint against ceased, the defendants, and each of them, have been spreading rumors and 4/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST’ AMENDED COMPLAINTLAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 ‘TEL: 415-929-3197 © FAX! 415-929-3476 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. These allegations include, but are not limited to, allegations of theft of properties offered for sale. Defendants respectfully submit that the allegations of defamation in BONNICI’s Complaint are still 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 plaintiff's spread “rumors and innuendo, and outright lies about the plaintiff” without identifying what those rumors, innuendo or lies were. BONNICI’s First Amended Complaint does not allege any defamation. BONNICI’s First Amended Complaint compounds this problem by (1) failing to allege the actual dates of the alleged defamations,! (2) failing to identify the people to whom the alleged defamations were made and (3) incorporating plaintiffs defamation Cause of Action into each of the other Causes of Action in his First Amended Complaint. As a result, defendants respectfully submit that BONNICCI’S First Amended Complaint fails to state any causes of action and is uncertain because it fails to allege the ultimate facts with any specificity whatsoever. 7 Other than saying the alleged defamations continued “[flor the past approximately 8 years,” which doesn’t identify the dates, but does suggest that BONNICI faces a Statute of Limitations problem, as the Statute of Limitations for defamation is one year. See California Code of Civil Procedure Section 340(c). 5/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINTTEL! 415-929-3197 * FAX: 415-929-3476 LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 Il. © CONCLUSION Accordingly, and for all of the foregoing reasons, defendants respectfully request that this Court sustain this Demurrer. Because BONNICI has been unable to allege facts sufficient to state a claim in the over two years his case has been pending in spite of multiple opportunities to amend, defendants respectfully submit that the time has come for this Court to sustain this Demurrer without leave to amen DATE: April 1, 2019 Attorneys for Defendants CARROLL HENRY and CHARLES MCMACKIN 6/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINTPROOF OF SERVICE I, MONICA TAURIELLO, declare: Iam 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 April 2, 2019, I served the within document(s) entitled: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED 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 perju dws of the State of California that the foregoing is true at DATED: April 2, 2019 f ZO \ 7/ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT