Demurrer in TIMOTHY A BONNICI VS. CHARLES MCMACKIN ET AL| Trellis.Law

On March 23, 2017 a Motion-Secondary was filed involving a dispute between Bonnici, Timothy A, and Does 1 To 20, Inclusive, Henry, Carroll, Mcmackin, Charles, for civil in the District Court of San Francisco County.

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1 Tara Macomber, SBN 264725
OPEN DOOR LEGAL F I L E D
2 60 Ocean Avenue Superior Court of California,
County of San Francisco
San Francisco, CA 94112
3 01/02/2020
Clerk of the Court
4 Attorney for Defendant
Plaintiff BY: EDNALEEN ALEGRE
Deputy Clerk
Timothy Bonnici
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY SAN FRANCISCO
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UNLIMITED JURISDICTION
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Timothy Bonnici, an individual, Case No.: CGC-17-557688
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PLAINTIFFS MEMORANDUM OF
11 Plaintiff POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT S
12 DEMURRER TO SECOND
vs.
13 AMENDED COMPLAINT.

14 Charles McMackin, an individual, Carroll Date: Tuesday January 14, 2020
Henry, an individual, and DOES 1 through
20, inclusive, Time: 9:30 a.m.
15 Dept: 302
Defendants.
16 Judge: Ethan P. Shulman
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1 MEMORANDUM OF POITNS AND AUITHORITIES IN OPPOSITION TO

2 DEFENDANT S MOTION TO STRIKE SECOND AMENDED COMPLAINT.
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I. BACKGROUND.
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Plaintiff filed a second amended complaint on October 31, 2019. Defendants filed a
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demurrer to the second amended complaint on November 26, 2019. The hearing on the
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7 demurrer was reserved for January 14, 2019. Plaintiff Timothy Bonnici filed a third amended

8 complaint on December 30, 2019. The complaint is amended to list several dates of incidents
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described in the Second amended complaint. The Third Amended complaint lists several other
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specific incidents that were referenced in the previous complaint but not with specificity,
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details about the incidents have been added to the new complaint.
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13 II. LEGAL ARGUMENT

14 A. THE COURT MUST DISMISS DEFENDANT S DEMURRER AS IT
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California Code of Civil Procedure § 472 states: (a) A party may amend its pleading once
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without leave of the court at any time before the answer or demurrer is filed, or after a demurrer
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is filed but before the demurrer is heard if the amended complaint, cross-complaint, or answer is
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19 filed and served no later than the date for filing an opposition to the demurrer. A party may

20 amend the complaint, cross-complaint, or answer after the date for filing an opposition to the
21 demurrer, upon stipulation by the parties. The time for responding to an amended pleading shall
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be computed from the date of service of the amended pleading.
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Opposition to noticed motion – must be filed and served 9 court days before
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25 hearing. California Code of Civil Procedure § 1005. Plaintiff filed a third amended complaint on

26 December 30, 2019. The opposition to the demurrer was due to be filed and served by December
27 31, 2019. Therefore, the third amended complaint was filed by the date for filing an opposition to
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1 the demurrer. Therefore, the demurrer should be removed from calendar as the second amended

2 complaint is now
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B. IF THE COURT DOES NOT ACCEPT THE FILING OF THE THIRD
4 AMENDED COMPLAINT BECAUSE IT IS NOT COMPLAINT WITH CCP
472, THEN THE COURT SHOULD GIVE PLAINTIFF LEAVE TO FILE THE
5 THIRD AMENDED COMPLAINT.
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Motion for leave to amend are liberally Granted by the Courts. A court may, in the
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furtherance of justice, allow a party to amend any pleading on any terms as may be
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proper. California Code Civil Procedure §473(a) and §576. There is a general policy in this state
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10 of great liberality in allowing amendment of pleadings at any stage of the litigation to allow

11 cases to be decided on their merits. (Desny v. Wilder (1956) 46 Cal.2d 715, 751.) See
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also Klopstock v. Superior Court. (1941) 17 Cal.2d 13, 19; Nestle v. City of Santa Monica (1972)
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6 Cal.3d 920, 939; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489.
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"…it is a a e ca e in hich a co ill be j ified in ef ing a pa lea e o
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16 amend his pleadings so that he may properly present his case. (Citations omitted.) If the

17 motion to amend is timely made and the granting of the motion will not prejudice the opposing
18 party, it is error to refuse permission to amend and where the refusal also results in a party being
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deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not
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only error but an abuse of discretion. (Citations omitted.)" (Morgan v. Superior Court (1959) 172
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22 Cal.App.2d 527, 530.)

23 "Generally, leave to amend must be liberally granted (Nestle v. City of Santa
24 Monica (1972) 6 Cal.3d 920, 939), provided there is no statute of limitations concern, nor any
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prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of
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preparation. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)" Solit v. Taokai Bank,
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28 Ltd. (1999) 68 Cal.App.4th 1435, 1448.

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1 Despite the policy of great liberality in granting leave to amend, a trial court may deny an

2 otherwise proper amendment if there was an unwarranted delay in bringing the motion to amend.
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(Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) To deny leave [permission] to amend
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based on an unreasonable delay in moving for leave to amend, however, the opposing party must
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have been misled or prejudiced by the delay (Kittredge Sports Co. v. Superior Court (1999) 213
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7 Cal.App.3e 1045, 1048.

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III. CONCLUSION
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Based on the reasons stated above, and forgoing facts, the Plaintiff respectfully request the
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court denies Defendants demurrer to Plaintiff s second amended complaint.
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13 Dated: December 30, 2019 Respectfully Submitted
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OPEN DOOR LEGAL
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__________________
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18 Tara Macomber
Attorney For Defendant
19 Tim Bonnici
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1 DECLARATION OF TARA MACOMBER

2 I, TARA MACOMBER, declare:
3 1. I am the attorney for the Plaintiff in the above-entitled action. The following
4 statements are based upon my personal knowledge and I could competently testify
5 thereto if called as a witness.
6 2. On December 30, 2019 I filed a Third Amended Complaint in the above entitled

7 action. A true and correct copy of this complaint is attached hereto as attachment A.
3. The complaint is amended to list several dates of incidents described in the first
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amended complaint.
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4. The complaint also lists several other specific incidents that were referenced in the
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previous complaint but not with specificity. I added details about the incidents.
11 5. I e-filed the complaint with one legal. true and correct copy of my filing confirmation
12 is attached hereto as attachment B.
13 I declare under penalty of perjury under the laws of the state of California that the foregoing
14 is true and correct.

15 Executed this 30th Day of December 2019 at San Francisco California.

16 ___________________________________
17 Tara Macomber
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ATTACHMENT A
1 Tara Macomber, SBN 264725
OPEN DOOR LEGAL
2 60 Ocean Avenue
San Francisco, CA 94112
3 Tel. (415) 323-0946
tara@opendoorlegal.org
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5 Attorney for Defendant
Timothy Bonnici
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY SAN FRANCISCO
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UNLIMITED JURISDICTION
9
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Timothy A. Bonnici, Case No.: CGC-17-557688
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12 THIRD AMENDED COMPLAINT
Plaintiffs, FOR DAMAGES.
13 vs.
14 Charles McMackin, an individual, Carroll
Henry, an individual, and DOES 1 through
15 20, inclusive,
Defendants.
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18 Plaintiff, TIMOTHY A. BONNICI, complains and alleges as follows:

19 PARTIES

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1. Plaintiff TIMOTHY A. BONNICI (hereinaf er Tim ) is an individual residing in
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the City and County of San Francisco, State of California. Plaintiff is engaged in the business of
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purchasing and selling jewelry, and other items of value.
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2. Defendant CHARLES McMACKIN ( Ch ck ) is an individual residing in the
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City and County of San Francisco, California, and in doing the things as hereinafter alleged,
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acted in part in San Francisco, and in part throughout the nine Bay Area Counties. Defendant
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McMackin is engaged in the business of purchasing and selling jewelry, and other items of
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value.
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3. Defendant Carroll Henry is an individual residing in the City of Daly City,
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County of San Mateo, State of California and is doing the things as hereinafter alleged, acted in
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part of San Francisco County, and in part throughout the nine Bay Area Counties. Defendant
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Henry is engaged in the business of purchasing and selling jewelry, and other items of value.
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4. Defendants Does 1 through 20 inclusive, are unknown to Plaintiff at this time.
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Plaintiff therefore sues said Defendants by such fictitious names. Plaintiff will amend this
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complaint to state the true names and capacities of these unknown Defendants when the same
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have been ascertained, together with further appropriate charges and allegations. Plaintiff is
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further informed and believes, and thereon alleges, that each of the fictitiously named
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Defendants is responsible in some manner for the occurrences herein alleged and that Plaintiff
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damage a herein alleged ere direc l and pro ima el ca ed b he e Defendan ac or
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failures to act. Each fictitiously named defendant is in some manner liable to plaintiff or claims
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some right, title, or interest in the subject property, or both.
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15 5. Each of the Defendants named herein are believed to and are alleged to have been

16 acting in concert with, as employee, agent, co-conspirator or member of a joint venture of, each

17 of the other Defendants, and are therefore alleged to be jointly and severally liable for the claims

18 set forth herein, except as otherwise alleged.

19 JURISDICTION AND VENUE
20 6. Jurisdiction of this court is proper because the cause of action herein arose in San
21 Francisco California. The conduct alleged here occurred substantially in the City and County of
22 San Francisco.
23 7. This Court has jurisdiction over all Defendants because, upon information and
24 belief, each Defendant is either a citizen of California, has sufficient minimum contacts in
25 California, or otherwise intentionally avails itself or him/herself of the California market so as to
26 render the exercise of jurisdiction over it by the California courts consistent with traditional
27 notions of fair play and substantial justice.
28 8. Venue is proper in this judicial district, pursuant to California Code of Civil

2
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Procedure § 395(a). Defendants reside and/or transact business in the County and City of San
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Francisco and are within the jurisdiction of this Court for purposes of service of process.
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STATEMENT OF FACTS
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9. On or around August 2013, Brenda Morgan informed Mr. Bonnici that Henry
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Carroll and Charles McMackin, had emailed making statements that Tim Bonnici was a thief and
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not to let him into an estate sale.
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10. On or around August 30, 2013, Brenda Morgan called Chuck at which time chuck
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told her that Tim and Sharon work tougher to get steal jewelry. He told her that she should let
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himself come before Tim so he can price the jewelry for her and price Tim out of the market.
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11. On or around September 23, or 24, 2013, Chuck told Brenda that if she let Tim
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into the sale, Tim would work with Sharon to steal things while she was not looking.
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12. On or around October 1, 2013, Mr. Carroll Henry told Brenda Morgan that Tim
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and his girlfriend Sharon will steal her blind. When aske if he ever saw Tim steal, Mr. Henry
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15 said, Time and ime again and al o, he ha e en repor ed Tim."

16 13. Charle McMackin old Brenda Morgan Ig aran ee o if o le Tim in here

17 they would pocket things and he would chat you up while his girlfriend goes around stuffing

18 ff in o her pocke .

19 14. In August 2013, Erica Steinetz had an estate sale at Lake Merced Hill Condo

20 Complex. While Tim was at the estate sale, Chuck McMackin arrived at the place. He spoke to
21 Erica several times about Tim. Erika later told Tim what he stated to her. Chuck McMackin told
22 Erica Steimetz tha Tim and Sharon ha e a bad rep a ion and he o ldn r hem in hi
23 home for a econd. A true copy of the statement is attached hereto as EXHIBIT 2.
24 15. On June 30, 2013, Tim arrived at an estate sale on a Saturday morning at 3909
25 20th Street San Francisco, CA. Chuck McMackin was at the estate sale before Tim arrived that
26 day. The man holding the sale, Thomas Stevens, told Tim that Chuck warned him to be wary of a
27 man named Tim with a Ponytail and not to leave things where they can be stolen. A true copy of
28 the statement is attached hereto as EXHIBIT 3.

3
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16. On or around July 2016, Jude Seyks, the owner of vintage collection, was holding
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an estate sale for a customer in Noe Valley. Plaintiff went to the sale with his girlfriend Sharon.
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Jude Seyks does many estate sales for people and she is one of the foremost estate sellers in the
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area. When Sharon and Tim entered the sale, Jude Sykes walked up to them and told them they
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need to leave. They had worked with her in the past with no issues and then suddenly, she told
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them they could no longer attend her estate sales. Plaintiff is informed and believes and on such
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information and belief alleges that that Chuck McMackin and Carroll henry told Jude Seyks on
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that day that Plaintiff is a thief and not to do business with him, thus damaging his business.
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17. On or around July 2016, an estate sale in San Mateo was advertised on Craigslist.
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Tim Bonnici went there with his friend James Carter at the time of the day it was advertised as
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open. When Tim and Jim got to the house, the owner of the house approached them. She said she
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knew who are and that she did not want to get involved in what they are doing, then she told
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them to leave or she will call the police. Tim left immediately. Plaintiff is informed and believes
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15 and on such information and belief alleges that Chuck McMackin and Carroll Henry told the

16 woman holding the estate sale, on the day of the estate sale, that Plaintiff is a thief and not to do

17 business with him, thus damaging his business.

18 18. On or around June 22, 2013, at 4027 Irving Street in San Francisco, Ray Pasquini

19 reported that Chuck McMackin old him ha Tim a kno n for aking i em ,e peciall

20 je elr i ho he o ner kno ledge.
FIRST CAUSE OF ACTION
21 DEFAMATION
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19. Plaintiff hereby incorporates by reference paragraphs 1 through 17 of this
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complaint as if fully set forth herein and for cause of action alleged as follows:
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20. Beginning in 2013 and continuing to date, Defendants caused to be published
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false and unprivileged communications tending directly to injure Plaintiff in his business and
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professional reputation. More specifically, Defendants made untrue statements regarding
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Timothy being a jewelry thief. Telling business associates not to trust them in their homes.
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Defendants stated that Tim would work with his girlfriend Sharon to steal things while the
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owners of an estate sale were not looking.
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21. Defendan defama or a emen ere de igned and in ended o dimini h
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Plain iff rep a ion and inj re Plain iff in hi good name and employment.
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22. These publications, both in writing and verbally, were made of and concerning the
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plaintiff, and were so understood by those who read and heard the publications.
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23. The entirety of these rumors, innuendo and lies were and are false as they pertain
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to plaintiff.
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24. The above described rumors, innuendo and lies constitute libel and slander as
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applies on their face. They clearly have exposed and continue to expose, plaintiff to hatred
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12 contempt, ridicule and obloquy as relates to the intentional exclusion of plaintiff from the sales

13 that over the years plaintiff has had the opportunity to attend along with the rest of the public,

14 which opportunity is now denied him, as more specially hereinafter described.

15 25. As a proximate result of the defamatory statements made by Defendant as

16 aforesaid, Plaintiff has suffered injury to his business and professional reputation, has been

17 excluded from sales and other promotions by which the plaintiff has been able to make a living

18 as both a buyer and seller, and further has suffered and continues to suffer embarrassment,
19 humiliation, and anguish, all to his damage in an amount according to proof.
20 26. Defendants committed the acts alleged herein maliciously, fraudulently, and
21 oppressively, with the wrongful intention of injuring Plaintiff, and acted with an improper and
22 evil motive amounting to malice and in conscious disregard of Plaintiff righ . Beca e he ac
23 taken toward Plaintiff were carried out by Defendants acting in a deliberate, cold, callous, and
24 intentional manner in order to injure and damage Plaintiff, he is entitled to recover punitive
25 damages from Defendants in an amount according to proof.
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WHEREAS, Cross-Plaintiff prays for relief as set forth below;
27 SECOND CAUSE OF ACTION
INTERFERRENCE WITH AN ECONOMIC RELATION
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27. Plaintiff hereby incorporates by reference paragraphs 1 through 26 of this
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complaint as if fully set forth herein and for cause of action alleged as follows:
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28. Throughout the time mentioned in this complaint, the defendants, and each of
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them, new that the plaintiff, and his associates, were and are, engaged in the business of
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purchasing and selling jewelry, and other items of value. The defendants, and each of them,
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knew that the sources relied on by plaintiff or his purchases include, but are not limited to,
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garage sales, yard sales, auctions, flea markets and private estate sales. Throughout the time
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mentioned in this complaint, the defendants, and each of them took affirmative steps and actions
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o in erfere i h eh plain iff right and ability to conduct his chosen profession.
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29. On or around July 2016, Jude Seyks, the owner of vintage collection, was holding
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an estate sale for a customer in Noe Valley. Plaintiff went to the sale with his girlfriend Sharon.
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Jude Seyks does many estate sales for people and she is one of the foremost estate sellers in the
13
area. When Sharon and Tim entered the sale, Jude Sykes walked up to them and told them they
14
15 need to leave. They had worked with her in the past with no issues and then suddenly, she told

16 them they could no longer attend her estate sales. Plaintiff is informed and believes and on such

17 information and belief alleges that that Chuck McMackin and Carroll henry told Jude Seyks on

18 that day that Plaintiff is a thief and not to do business with him, thus damaging his business.

19 30. On or around July 2016, an estate sale in San Mateo was advertised on Craigslist.

20 Tim Bonnici went there with his friend James Carter at the time of the day it was advertised as
21 open. When Tim and Jim got to the house, the owner of the house approached them. She said she
22 knew who are and that she did not want to get involved in what they are doing, then she told
23 them to leave or she will call the police. Tim left immediately. Plaintiff is informed and believes
24 and on such information and belief alleges that Chuck McMackin and Carroll Henry told the
25 man holding the estate sale, on the day of the estate sale, that Plaintiff is a thief and not to do
26 business with him, thus damaging his business.
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31. Defendants, and each of them, frequent the same venues for the same purpose as
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plain iff, and in compe i ion i h plain iff. B rea on of hi compe i ion, and he defendan

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previous inability to effectively engage in competition, the defendants, and each of them, set
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upon a course to in erfere ih he plain iff b er and eller rela ion hip ih he plain iff.
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32. For purposes of gaining an unfair bidding advantage over the plaintiff at these
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venues, the defendants, and each of them, have engaged in the activities noted hereinabove,
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which continue to the date of this complaint, by reason of which, plaintiff and his associates have
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been effectively banned from participating in the above-mentioned sales.
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33. As a proximate result of being banned from the sales, together with other conduct
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of the defendants, plaintiff has been damaged.
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34. The aforementioned acts of the defendants were willful, oppressive and malicious.
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Plaintiff is therefore entitled to punitive damages in a sum sufficient to punish the defendants and
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12 deter their actions.

13 WHEREAS, Plaintiff prays for relief as set forth below;
PRAYER FOR RELIEF
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15 WHEREFORE, plaintiff prays judgment against defendants, and each of them as follows:

16 1. For general damages according to proof.

17 2. For special damages in a sum according to proof

18 3. For exemplary or punitive damages in a sum sufficient to punish and deter.
19 4. For a orne fee and co inc rred herein;

20 5. For costs of suit incurred herein; and
21 6. For all other relief that the Court deems just and proper.
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Dated this December 26, 2019, Respectfully Submitted,
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24 OPEN DOOR LEGAL

25 __________________
26
Tara Macomber
27 Attorney for Defendant
Tim Bonnici
28

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EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
ATTACHMENT B
12/30/2019 One Legal

Con rmation #: 23435962
Case Title: IMO H A BONNICI . CHA LE MCMACKIN
E AL

O L .I ,
@ . .

CA EI F A I DE DE AIL
Co rt Name: F C , Order T pe: F
C
C Filing order #: 14220207

Co rt Branch: F - Date/Time S bmitted: 12/30/2019 12:20 M
M A

Case Title: IMO H A BONNICI
. CHA LE Contact Name: M
MCMACKIN E AL
Attorne Name: M
Case Categor : G C
Email Noti cation: C
Case T pe: D

Case #: CGC-17-557688

D C E
Doc ment T pe Doc ment Title Pages Uploaded

A C B ' A C 14

C 2019 O L LLC . .

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Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

January 02, 2020

Case Filing Date

March 23, 2017

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Motion-Secondary: TIMOTHY A BONNICI VS. CHARLES MCMACKIN ET AL

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