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Michael G. Ackerman, Esq. (SBN 64997)
LAW OFFICES OF MICHAEL G. ACKERMAN
2391 The Alameda, Suite 100
Santa Clara, CA 95050
Telephone: (408) 261-5800
Facsimile: (408) 261-5900
Email: mga@mgackermanlaw.com
Attorneys for Plaintiff,
PHIL RESTIVO
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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ll PHILIP RESTIVO, Case No.: 17CV308469
12 Plaintiff,
REQUEST FOR JUDICIAL NOTICE
13 vs.
Date: June 14, 2019
14 WORLDWIDE GROUND Time: 9:00
7
a.m.
TRANSPORTATION SOLUTIONS, INC.; Dept.:
15 JAMES BROWN, an individual; and DOES Judge: Hon. Christopher G. Rudy
1 through 5, inclusive.
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Defendants. Trial Date: March 11, 2019
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TO ALL PARTIES AND THEIR ATTORNEYS’ OF RECORD: Plaintiff, Philip Restivo ,
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requests that the Court take Judicial notice of the following documents:
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24 A Defendant Worldwide Ground Transportation Solutions, Inc. and James Brown’s
25 Notice of Demurrer and Demurrer to Complaint, Memorandum of Points and
Authorities; Declaration of William R. Cumming, dated June 2, 2017;
26
27 Order re: Demurrer, filed on August 10, 2017;
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REQUEST FOR JUDICIAL NOTICE Case No.: 17CV308469
Declaration of James Brown in Support Of Worldwide Ground Transportation
Solutions, Inc. And James Brown’s Motion For Summary Judgment Or In The
Alternative Summary Adjudication, dated November 21, 2018;
Declaration of Phil Restivo In Opposition to Motion For Summary Judgment, Or In
The Alternative, Motion For Summary Adjudication.
AUTHORITY
Evidence Code §453 specifies that a trial court shall take judicial notice of any matter
specified in Evidence Code §452 if the party requests it and:
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"(a) Gives each adverse party sufficient notice of the request, through the pleadings or
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otherwise, to enable such adverse party to prepare to meet the request; and
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13 (b) Furnishes the court with sufficient information to enable it to take judicial notice
14 of the matter."
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Evidence Code §452 provides that judicial notice may be taken of records of any court of this
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state or any court of the record of the United States or any state of the United States, as well as
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statutory law. (Evidence Code §§452(a)(6)(d)(1) and (d)(2)). The above documents are clearly
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within those matters which may be judicially noticed.
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20 Based on the foregoing, plaintiff requests that this Court to take judicial notice of the above
21 documents as well as the underlying facts in this matter.
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DATED: May 77 2019 LAW OFFICES OF
24 MICHAEL G. ACKERMAN
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26
27 By CLG
ICHAEV G-A\ E) ‘AN, ESQ
28 Attorne for Plaintiff, P HIL RESTIVO
REQUEST FOR JUDICIAL NOTICE Case No.: 17CV308469
Exhibit “A” to Request for Judicial Notice
(re: Opposition to Motion for Attorney’s Fees)
William R. Cumming, State Bar No. 200966
cumming @cummingandassociateslaw.com
CUMMING & ASSOCIATES, APLC
3080 Bristol Street, Sixth Floor, Suite 630
Costa Mesa, CA 92626
Telephone: (714) 432-6494
Facsimile: (714) 202-3162
Attorneys for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
10
i PHILIP RESTIVO, Case No. 17CV308469
12 Plaintiff, Judge Mary E. Arand
Department 09
13 ¥.
DEFENDANTS WORLDWIDE GROUND
14 WORLDWIDE GROUND TRANSPORTATION SOLUTIONS, INC.
TRANSPORTATION SOLUTIONS, INC.; AND JAMES BROWN’S NOTICE OF
15 JAMES BROWN, an individual; and DOES 1 DEMURRER AND DEMURRER TO
through 5, inclusive, COMPLAINT; MEMORANDUM OF
16 POINTS AND AUTHORITIES;
Defendants. DECLARATION OF WILLIAM R.
17
a ) CUMMING
18
Hearing:
19 Date: July 27, 2017
Time: 9:00 a.m.
20 Dept.: D-09
21 Action Filed: April 12, 2017
Trial Date: None
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met iT yw Af .
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DEFENDANTS’ DEMURRER TO COMPLAINT
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT on July 27, 2017 at 9:00 a.m., or as soon thereafter as the
matter may be heard in the above-entitled court located at 191 North First Street, San Jose,
California 95113, Defendants Worldwide Ground Transportation Solutions, Inc. (“Worldwide”)
and James Brown (“Brown,” collectively with Worldwide, “Defendants”) will demur to Plaintiff
Philip Restivo’s (“Restivo”) Complaint on the following grounds:
Demurrer to First Cause of Action
1 The First Cause of Action, alleging a breach of written contract, does not state facts
sufficient to constitute a cause of action against Defendants. (Cal. Code Civ. Proc. § 430.10(e).)
10 2. The First Cause of Action for breach of written contract fails for uncertainty. (Cal.
11 Code Civ. Proc. § 430.10(£).)
12 This Demurrer is based upon this Notice and Demurrer; the attached Memorandum of
13 Points and Authorities; the records, pleadings and files herein; and any and all such evidence and
14 arguments as this court may deem just and proper.
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16 Dated: June 2, 2017 CUMMING & ASSOCIATES, APLC
live
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18 By:
William R. Cumming
19 Attorneys for Defendants
Worldwide Ground Transportation Solutions, Inc. and
20 James Brown
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DEFENDANTS’ DEMURRER TO COMPLAINT
TABLE OF CONTENTS
Description Page
INTRODUCTION
SUMMARY OF RELEVANT ALLEGATIONS
STANDARD OF REVIEW WHEN RULING ON DEMURRER.
DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT
SHOULD BE SUSTAINED...
A Restivo’s First Cause of Action for Breach of Contract Fails
As a Matter of Law Because Restivo is not a Party to the
Subject Contracts
B. Restivo’s First Cause of Action for Breach of Contract Against
James Brown Fails as a Matter of Law.
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Cc. Restivo’s First Cause of Action for Breach of Contract Against
il Defendants is Fatally Uncertain
12 CONCLUSION
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DEFENDANTS’ DEMURRER TO COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
1 INTRODUCTION
This action involves a dispute arising out of an asset purchase agreement between
as buyer, and
Defendant Worldwide Ground Transportation Solutions, Inc. (“Worldwide”),
(““Restivo”) is
Restivo Enterprises, Inc. (‘“Restivo Enterprises”), as seller. Plaintiff Philip Restivo
against
not a party to the agreement, but nonetheless has filed this breach of contract action
Worldwide,
Worldwide, and its president James Brown (“Brown,” collectively with
agreement.
“Defendants”), for their alleged failures to provide limousine services under the
is not a party
As set forth below, Restivo’s Complaint fails to state a claim because Restivo
of the asset
10 to any agreement alleged in the Complaint and is only an incidental beneficiary
e agreement, he fails
11 purchase agreement. Even assuming Restivo could enforce the asset purchas
12 to allege any agreement between himself and Brown. Accordingly, Restivo’s breach of contract
for uncertainty
13 claim against Brown fails as a matter of law. Finally, Restivo’s Complaint fails
alleged in the
14 because it fails to sufficiently allege the parties to, or breaches of, the agreements
15 Complaint.
should be sustained.
16 Based on the foregoing, Defendants’ Demurrer to Restivo’s Complaint
17 2. SU OF RELEV
Ss SUMMARYNN
2 LA ANT ALLEG
KY
ee ATIONS
18 On April 12, 2017, Restivo filed a complaint against Defendants for breach of contract.
19 Restivo alleges in his Complaint that “On or about May 8, 2014, Restivo Enterprises, Inc.
20 (“Restivo Enterprises”) entered into an agreement to sell assets.” (Complaint, { 6.) The
the Addendum to said
21 Complaint states that the subject “Offer and Agreement to Buy as well as
“Agreement to
22 agreements are attached [to the Complaint] as Exhibit ‘A’,” (collectively, the
23 Buy”). (Complaint, 1 6, Ex. A.) The documents included in Exhibit “A” are as follows:
1 An Offer and Agreement to Buy, between Worldwide, as Buyer, and Restivo
Enterprises, as Seller;
de,
26 An Addendum to Offer and Agreement to Buy dated 5/13/14, between Worldwi
27 as Buyer, and Restivo Enterprises, as Seller; and
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DEFENDANTS’ DEMURRER TO COMPLAINT
3. An Addendum to Offer and Agreement to Buy dated 5/29/14, between Worldwide,
as Buyer, and Restivo Enterprises, as Seller.
(Complaint, J 6, Ex. A.)
Restivo also alleges that the “the parties entered into a covenant not to compete attached
hereto as Exhibit ‘B’” (“Non-Compete”). (Complaint, { 6, Ex. B.) The Non-Compete agreement
also is between Restivo Enterprises and Worldwide. (Complaint, {I 6, Ex. B.) Each of the
documents included in Exhibits “A” and “B” is executed by Philip Restivo, as President of Restivo
Enterprises, and James Brown, as President of Worldwide. (Complaint, Exs. A, B.)
Restivo further alleges that “a dispute arose between the parties resulting in the parties
10 participating in a mediation pursuant to paragraph 16 of the Offer and Agreement to Buy,”’ at
11 which they entered into a mediation settlement agreement (the “Settlement Agreement”).
the
12 (Complaint, { 7, Ex. C.) The Settlement Agreement expressly states it is an addendum to
13 Purchase Agreement between Restivo Enterprises and Worldwide. It is executed by James Brown,
14 on behalf of Worldwide, and Phil Restivo, on behalf of Restivo Enterprises. (Complaint, I 7, Ex.
15 C, Settlement Agreement, 2.) Restivo alleges that pursuant to the Settlement Agreement and
16 Agreement to Buy, Worldwide agreed that following its acquisition of Restivo Enterprises’ assets,
17 Restivo “was to receive discount limousine services ... for a value of no more than $5,000.00 per
18 month...” (Complaint, { 7.)
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20
21
' Paragraph 16 of the Offer and Agreement to Buy provides in relevant part:
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16. Complete Agreement, Mediation, Arbitration, Attorney’s Fees:
23 ... Any party that fails to participate in the mediation of a dispute(s)
arising out of this Agreement prior to initiating any court action or
24 arbitration shall waive their right to attorney’s fees and costs. In the
event that mediation fails to resolve a dispute(s), the parties will
25 arbitrate in accordance with the rules of the American Arbitration
Association.
26
(Complaint, {| 6, Ex. A, Offer and Agreement to Buy, {[ 16.)
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DEFENDANTS’ DEMURRER TO COMPLAINT
Restivo contends the “Defendants” breached “the aforementioned mediated settlement
agreement by refusing and failing to provide discount limousine services a [sic] promised under
the original addendum to Offer and Agreement to Buy and the mediated settlement agreement,”
causing Restivo damages. (Complaint, { 7, 8.) Restivo requests that the Court declare that the
Non-Compete is no longer in effect because it is dependent upon Defendants’ provision of the
limousine services. (Complaint, { 8.)
As set forth below, Restivo’s allegations are fatally uncertain and without merit as a matter
of law.
3. STANDARD OF REVIEW WHEN RULING ON DEMURRER
10 A demurrer tests the sufficiency of a pleading by raising questions of law. (Buford v. State
il (1980) 104 Cal.App.3d 811, 818.) Code of Civil Procedure section 430.10 provides that a party
12 may file a demurrer to the complaint where the pleading “does not state facts sufficient to
13 constitute a cause of action,” or is uncertain, ambiguous, and unintelligible. (Cal. Code Civ. Proc.,
14 § 430.10(e), (£).)
15 In ruling on a demurrer, the court must assume the truth of all properly pled material
16 allegations of fact. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 635.) However, while a demurrer
17 admits all material facts that were properly pled, a demurrer does not assume the truth of
18 contentions, deductions, or conclusions of facts or law. (Leyva v. Nielsen (2000) 83 Cal.App.4th
19 1061, 1063; Freeman v. San Diego Ass’n of Realtors (1999) 77 Cal.App.4th 171, 189.)
20 Moreover, “[uJnder the doctrine of truthful pleading, the courts will not close their eyes
21 to situations where a complaint contains allegations of fact inconsistent with attached
22 documents, or allegations contrary to facts which are judicially noticed . . . False allegations of
23 fact, inconsistent with annexed documentary exhibits [citation] or contrary to facts judicially
noticed [citation], may be disregarded . . . .”. (Hoffman v. Smithwoods RV Park, LLC (2009) 179
25 Cal.App.4th 390, 400 (quotations omitted).
26 When a demurrer is sustained, the plaintiff bears the burden of showing how the defect can
27 be cured by amendment. (Blatty v. N Y. Times Co. (1986) 42 Cal.3d 1033, 1040-41; Goodman v.
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DEFENDANTS’ DEMURRER TO COMPLAINT
Kennedy (1976) 18 Cal.3d 335, 349.) Where the plaintiff fails to do so, or if it is clear that the
defect cannot be cured, the demurrer is properly sustained without leave to amend. (Hendy v.
Losse (1991) 54 Cal.3d 723, 742-43; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
4, DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT SHOULD BE
SUSTAINED
A. AESHVO'S First Lause
Restivo’s Lirst Action For
of Acion
Cause of Lor ora of Contract Fails As A— Matter
Breach ee——e~—— ee of
Law Because Restivo Is Not A Party To The Subject Contracts
Restivo’s First Cause of Action fails as a matter of law because Restivo is not a party to
any agreement pled in the Complaint, and to the extent he has any rights under the alleged
10 agreements, is only an incidental beneficiary of the alleged agreements. The elements of a cause
11 of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or
12 excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.
13 (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, a Otworth v. Southern Pac.
14 Transp. Co. (1985) 166 Cal.App.3d 452, 458.)
15 In this case, Restivo cannot state a claim for breach of contract because he has failed to
16 sufficiently plead the existence or breach of a contract between himself and any party to the
17 Complaint. The Agreement to Buy and Non-Compete attached to the Complaint as Exhibits A and
18 B make clear that the contracts were solely between Worldwide and Restivo Enterprises. The
19 Exhibits identify the parties to the agreements and addenda, as Restivo Enterprises as “Seller,” and
20 Worldwide as “Buyer.” (Complaint, J 6, Exs. A, B.) By its plain terms, the Settlement Agreement
21 is an addendum to the existing Agreement to Buy entered into by and between Restivo Enterprises
22 and Worldwide. (Complaint, Ex. C.)
23 Mr. Restivo signed the Agreement to Buy, Non-Compete and Settlement Agreement on
behalf of Restivo Enterprises. (Complaint, Exs. A, B, C.) He therefore has no rights or obligations
25 under, and is not a party to, the Agreement to Buy and addenda thereto, including the Settlement
26 Agreement. (See, e.g., Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830,
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DEFENDANTS’ DEMURRER TO COMPLAINT
837 [‘‘Since it is apparent from the face of the account agreement that Tweed signed as the agent of
CapWest, he is not a party to the agreement with rights and obligations thereunder”].)
Restivo similarly has no rights or obligations as a third party beneficiary of any alleged
agreement. California Civil Code section 1559 provides that “[a] contract, made expressly for the
benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”
(Cal. Civ. Code, § 1559.) “However, it is well settled that Civil Code section 1559 excludes
enforcement of a contract by persons who are only incidentally or remotely benefited by it.”
(California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111
Cal.App.4th 1127, 1138)
10 “A third party may qualify as a beneficiary under a contract where the contracting parties
i must have intended to benefit that third party and such intent appears on the terms of the contract.”
12 (Id. at 1138.) “‘[A]n intent to make the obligation inure to the benefit of the third party must have
13 been clearly manifested by the contracting parties.” (Id.) ‘““The fact that the third party is only
14 incidentally named in the contract or that the contract, if carried out to its terms, would inure to the
15 third party’s benefit is insufficient to entitle him or her to demand enforcement.’” (Bancomer, S.
16 A. v. Superior Court (1996) 44 Cal.App.4th 1450; Walters v. Calderon (1972) 25 Cal.App.3d 863.)
17 “Whether a third party is an intended beneficiary or merely an incidental beneficiary to the
18 contract involves construction of the parties’ intent, gleaned from reading the contract as a whole
19 in light of the circumstances under which it was entered.’” (Id.)
Here, Restivo erroneously alleges that he is a third party beneficiary based on the subject
21 agreements’ reference to consulting services he provided for 18 months, and Worldwide’s alleged
22 agreement to allow him the use of its vehicles. (Complaint, [ 6.) However, it is apparent from
Agreement to Buy and its addenda (including the Settlement Agreement) that the primary purpose
24 of the agreements is the sale of Restivo Enterprises’ assets to Worldwide. Nowhere in the
25 Agreement to Buy or in the addenda thereto do the parties expressly state that Restivo is an
26 intended beneficiary of the agreement. Restivo’s merely being identified as a recipient of
27 limousine services in the agreement is insufficient to establish his being an express beneficiary.
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DEFENDANTS’ DEMURRER TO COMPLAINT
(Bancomer, S. A., 44 Cal.App.4th 1450.) Accordingly, Restivo is only an incidental beneficiary
under the alleged agreement(s).
Because Restivo is not a party to or express beneficiary of any agreement alleged in the
Complaint, he cannot state a claim for breach of contract. (Sheppard v. Banner Food Products,
Inc. (1947) 78 Cal.App.2d 808, 812 [holding “Plaintiff has no right to enforce performance of the
[] contract. He was not a party to it and it was not made specifically for his benefit... . Ifa
contract is not made expressly for his benefit, it may not be enforced by him even though he would
be incidentally benefited by performance.”].)
B. Restiyo’s First Cause of Action For Breach of Contract Against James Brown
10 Fails As A Matter of Law
11 Even assuming Restivo can enforce the alleged agreements, Restivo’s first cause of action
12 for breach of contract fails against Brown, because Restivo fails to sufficiently plead the existence
13 or breach of a contract between himself and Brown. As previously stated, the Agreement to Buy
14 and the addenda thereto (including the Settlement Agreement) make clear that the agreements were
15 solely between Worldwide and Restivo Enterprises. The obligations in the agreements are those of
16 Worldwide, not Mr. Brown. (Complaint, {][ 6-7, Exs. A, B,C.) Mr. Brown signed the alleged
17 agreements on behalf of Worldwide. (Complaint, 1] 6-7, Exs. A, B, C.) He therefore has no rights
18 or obligations under, and is not a party to, the alleged agreements. (See, e.g., Ronay Family Limited
19 Partnership, supra, 216 Cal.App.4th at 837.)
20 Because the Agreement to Buy and addenda thereto leave no doubt that Mr. Brown is not a
21 party to the subject contracts, Restivo cannot allege a breach of contract action against him.
22 (Oppenheimer v. Gen. Cable Corp. (1956) 143 Cal.App.2d 293, 297 [no right to maintain action
23 against a defendant for promises made in a contract where defendant is not a party to the contract];
Seymour v. Christiansen (1991) 235 Cal.App.3d 1168, 1172 [sustaining demurrer on grounds that
25 the individual defendants cannot be liable because they were not parties to the contract]; Gordon
Bldg. Corp. v. Gibraltar Sav. & Loan Ass’n. (1966) 247 Cal.App.2d 1, 6 [A complaint fails to state
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DEFENDANTS’ DEMURRER TO COMPLAINT
party tothe contract and
a cause of action for breach of contract if it fails to allege that plaintiff is a
the performance of conditions precedent.].)
breached any
In sum, Restivo cannot and has not alleged that Mr. Brown entered into or
agreement between himself and Mr. Brown. Accordingly, Mr. Brown’s demurrer to Restivo’s
breach of contract cause of action should be sustained without leave to amend.
ants Is
Cc. Restivo’s First Cause of Action For Breach of Contract Against Defend
Fatally Uncertain
fails because it
Restivo’s first cause of action for breach of contract against Defendants also
defendants cannot
is fatally uncertain. If a complaint is so uncertain or ambiguous that the
reaso nably determine what issues must be admitted or denied, or what
counts
10 reasonably respond,
y v. Maly’s of
11 or claims are directed against them, then a demurrer will be sustained. (Khour
12 California, Inc. (1993) 14 Cal.App.4th 612, 616.)
charges
13 The “‘purpose of a complaint is to furnish the defendants with certain definite
his finger squarely and
14 which can be intelligently met .... The point is that the accuser must place
n California
15 directly upon whatever dereliction is relied upon.” (Zumbrun v. University of Souther
p.2d 59, 69.) “It is settled
16 (1972) 25 Cal.App.3d 1, 8, quoting Lavine v. Jessup (1958) 161 Cal.Ap
facts must be alleged
17 law that a pleading must allege facts and not conclusions, and that material
(1979) 88
18 directly and not by way of recital.” (Ankeny v. Lockheed-Missiles & Space Co.
a determination of the
19 Cal.App.3d 531, 537.) Further, “in pleading, the essential facts upon which
is left to
20 controversy depends should be stated with clearness and precision so that nothing
left to
21 surmise.” (Id.) “Those recitals, references to, or allegations of material fact which are
22, surmise are subject to special demurrer for uncertainty.” (Id.)
Restivo fails to
First, Restivo’s breach of contract action is fatally uncertain because
of the Complaint.
24 specifically allege the parties to the alleged agreements that are the subject
assets” and the
25 Restivo alleges that “Restivo Enterprises, Inc. entered into an agreement to sell
26 “the parties entered into a covenant not to compete.” (Complaint, ] 6 [emphasis added].) Restivo
any of the parties
27 therefore only alleges one party to the Agreement to Buy, and does not identify
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DEFENDANTS’ DEMURRER TO COMPLAINT
to the Non-Compete. The exhibits show that the parties to these agreements are Restivo
Enterprises and Worldwide. (Complaint, 6, Exs. A, B.) However, Restivo has brought this
action in his own name, and sued Mr. Brown in his individual capacity. It therefore is entirely
unclear which parties Restivo claims are parties to the agreements attached as Exhibits A and B.
To make matters more confusing, Restivo next alleges that a “dispute arose between the
parties resulting in the parties participating in a mediation pursuant to paragraph 16 of the Offer
and Agreement to Buy,” and “the parties sign[ing] a mediated settlement agreement.”
(Complaint, 17.) Again, the Agreement to Buy attached as Exhibit A states it is between Restivo
Enterprises and Worldwide. Therefore, any mediation conducted pursuant to paragraph 16 of that
10 agreement would be between Restivo Enterprises and Worldwide. However, Restivo fails to
i allege the parties to Exhibit C, instead identifying them merely as “the parties.”
12 Second, Restivo fails to clearly identify which defendants engaged in the conduct — i.e., the
13 alleged breaches~ complained of in the Complaint. Restivo broadly alleges that “Defendants have
14 breached the aforementioned mediated settlement agreement by refusing and failing to provide
15 discount limousine services a [sic] promised under the original addendum to Offer and Agreement
16 to Buy and the mediated settlement agreement.” (Complaint, 8.) Restivo alleges “Defendants
17 stated] either that they were too busy or that they did not have a driver.” (Complaint, { 8.)
18 Restivo’s allegations fail to distinguish among the Defendants — i.e.; to state which
19 “Defendants” allegedly failed to provide the discounted limousine services or stated that they were
20 too busy or did not have a driver. Restivo thus fails to make clear the basis for each of the
21 Defendant’s alleged obligations under and purported breaches of the alleged agreement(s). (Wise
22 v. S. Pac. Co. (1963) 223 Cal.App.2d 50, 60 [defendant’s breach must be stated with certainty].)
In short, Restivo’s Complaint fails to make clear which parties are alleged to have entered
into each agreement, which parties are alleged to have breached the agreements, and under which
provisions those parties were obligated to perform. Because Restivo fails to properly identify the
26 parties to the alleged contracts or to distinguish among the Defendants throughout his claim,
27 Restivo’s breach of contract claim fail to provide Defendants with sufficient information to
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DEFENDANTS’ DEMURRER TO COMPLAINT
surmise the claims against them. Accordingly, Restivo’s claims against Defendants are rendered
fatally uncertain.
5 CONCLUSION
Based on the foregoing, Defendants respectfully requests that the Court sustain the
Demurrer to Restivo’s First Cause of Action.
Dated: June 2, 2017 CUMMING & ASSOCIATES, APLC
By.IMR
William
R. Cumming
10 Attorneys forDefendants
Worldwide Ground Transportation OD Inc. and
i James Brown
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DEFENDANTS’ DEMURRER TO COMPLAINT
D ECLARATION OF WILLIAM R. CUMMING
1 Iam an attorney at law licensed to practice before all courts in the State of
California and am an attorney at the law firm of Cumming & Associates, APLC. This firm serves
as attorney of record for Defendants Worldwide Ground Transportation Solutions, Inc. and James
Brown. The facts set forth in this declaration are based upon my personal knowledge. I could and
would competently testify as to all the matters set forth herein if called upon to do so.
2. The purpose of this declaration is to describe my efforts to comply with Code of
Civil Procedure § 430.41 before filing the demurrer.
3 Section 430.41 states before filing a demurrer pursuant to this chapter, the
10 demurring party shall meet and confer in person or by telephone with the party who filed the
11 pleading that is subject to demurrer for the purpose of determining whether an agreement can be
12 reached that would resolve the objections to be raised in the demurrer.
13 4. Attached as Exhibit 1 is a true and correct copy of an e-mail dated May 19, 2017
14 demonstrating my efforts to meet and confer with Philip Restivo’s counsel before filing a
15 demurrer.
16 5 Despite ongoing efforts, we did not reach an agreement resolving the objections
17 raised in the demurrer.
18 I declare under penalty of perjury under the laws of the State of California that the
19 foregoing is true and correct.
20 #fornia.
+
21
William R. Cumming
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DEFENDANTS’ DEMURRER TO COMPLAINT
EXHIBIT 1
Bill Cumming
:
From: Bill Cumming
Sent: Friday, May 19, 2017 8:33 PM
To: ‘Michael G Ackerman’
Ce: Anderson CAL
Subject: RE: Philip Restivo v. Worldwide Ground Transportation, et al.
Mike,
Hello. The purpose of this e-mail is tosatisfy the requirements of Code of Civil Procedure § 430.41
before we file a demurer to the complaint. Section 430.41 states before filing a demurer, we need to
“meet and confer” for the purpose of determining whether an agreement can be reached that would
resolve the objections to be raised in the demurrer.
As part of the meet and confer process, the demurring party shall identify all of the specific causes of
action that it believes are subject to demurrer and identify with legal support the basis of the
deficiencies.
The complaint has one cause of action for breach ofcontract. ‘As to James Brown, the demurrer will be
based upon the fact that he is not a party to purchase agreement and therefore should not have been
named in the complaint.
As to Worldwide, the demurrer will be based upon the fact that Phil Restivo, as an individual, does not
have the ability to enforce the terms of the purchase agreement because he is not a party to the purchase
agreement or ‘and intended third party beneficiary. At best, he is only an incidental beneficiary and
accordingly cannot enforce the contract terms.
Section 430.41 states the parties shall meet and confer at least five days before the date the responsive
pleading is due. The deadline for Worldwide to respond to the complaint is May 22.
I recommend we schedule a time to discuss the above on the telephone and we also need an agreement
that you will not file and entry of default as to Worldwide after May 22.
Please let me know your availability to talk on May 22.
Thanks
William R. Cumming, Esq.
Cumming & Associates, APLC
3080 Bristol Street, Suite 630
Costa Mesa, CA 92626 ~
Telephone No.: (714) 432-6494
Direct Dial No.: (714) 754-0120
Facsimile No.: (714) 202-3162
E-mail: cumming@cummingandassociateslaw.com
www.cummingandassociateslaw.com
From: Michael G Ackerman [mailto:mga@maackermanlaw.com}
Sent: Tuesday, May 16, 2017 2:32 PM
To: 'Bill Cumming’
Ce: Phil
Subject: RE: Philip Restivo v. Worldwide Ground Transportation, et al.
Both were sub-served. James Brown on April 25, 2017 and Worldwide on April 21, 2017.
From: Bill Cumming jtozcur fassol law.cot
Sent: Tuesday, May 16, 2017 1:53 PM
To: Michael G Ackerman
Cc: Laurie Stclaire
Subject: Phillp Restivo v. Worldwide Ground Transportation, et al.
Mike,
It is my understanding you served both Worldwide and James Brown, but at different times. I looked
on the court docket and was unable to determine when either were served. Can you please confirm the
dates of service for each.
Thanks
William R. Cumming, Esq.
Cumming & Associates, APLC
3080 Bristol Street, Suite 630
Costa Mesa, CA 92626
Telephone No.: (714) 432-6494
Direct Dial No.: (714) 754-0120
Facsimile No.: (714) 202-3162
E-mail: cumming@cummingandassociateslaw.com
www.cummingandassociateslaw.com
PROOF OF SERVICE
Philip Restivo v. Worldwide Ground Transportation Solutions, Inc. and James Brown
Case No. 17CV308469
Iam employed in the City of Costa Mesa, County of Orange, State of California. Iam
Bristol
over the age of 18 years and not a party to the within action. My business address is 3080
Street, Suite 630, Costa Mesa, California 92926. On June 5, 2017, I served the following
documents on the parties identified in the attached service list.
DEFENDANTS WORLDWIDE GROUND TRANSPORTATION SOLUTIONS, INC.
AND JAMES BROWN’S NOTICE OF DEMURRER AND DEMURRER TO
N
COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIO
OF WILLIAM R. CUMMING
10 Q (BY MAIL) I caused each such envelope, with postage thereon fully prepaid, to
be placed in the United States mail at Costa Mesa, California. Tam readily familiar with the
i practice of collection and processing of correspondence for mailing, said practice being that in
the ordinary course of business, mail is deposited in the United States Postal Service the same
day as it is placed for collection.
13
o (BY PERSONAL SERVICE) I personally handed to the parties identified in the
14 attached service list.
45
o (BY OVERNITE EXPRESS) J am readily familiar with the practice of
16 collection and processing of correspondence for overnight delivery and know that the
document(s) described herein will be deposited in a box or other facility regularly maintained for
17 overnight delivery.
18
Oo (BY FACSIMILE) I caused to be sent via facsimile the document(s) described
19 herein and listed on the attached service list.
20 xX (BY EMAIL) I caused to be electronically transmitted the document(s) described
herein and listed on the attached service list. My electronic service address is
21
stclaire@cummingandassociateslaw.com.
22
Ideclare under penalty of perjury under the laws of the State of California that the above
is true and correct.
Executed on June 5, 2017, at Mesa, California.
25
26
Frsrwe Ly Chi
Laurie St. Claire
27
28
1
PROOF OF SERVICE
SERVICE LIST
Philip Restivo v. Worldwide Ground Transportation Solutions, Inc. and James Brown
Case No. 17CV308469
Michael G. Ackerman, Esq.
mga@mgackermanlaw.com
Law Offices of Michael G. Ackerman
2391 The Alameda, Suite 100
Santa Clara, CA 95050
Telephone: 408-261-5800
Facsimile: 408-261-5900
Counsel for Plaintiff Philip Restivo
10
11
12
13
14
15
16
17
18
19
20
21
22
23
26
27
2
PROOF OF SERVICE
Exhibit “B” to Request for Judicial Notice
(re: Opposition to Motion for Attorney’s Fees)
FSS
F Se CCEATED
lsve
i. TLE
Fie AUG 1 0-2017
Clerk of the Court
* Superior Court of CA County of Santa Clay
or enry Reemisrase
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10
11
12 PHILIP RESTIVO,
Case No. 17-CV-308469
2
13 Plaintiff,
ORDER RE: DEMURRER
14 VS.
15
WORLDWIDE GROUND TRANSPORTATION
16 SOLUTIONS, INC., et al.,
17
Defendants.
18
19
20
21 The demurrer filed by defendants Worldwide Groun
d Transportation Solutions, Inc. and
22 James Brown came on for hearing before the Honor
able Mary E. Arand on August 8, 2017, at
23 9:00 a.m. in Department 9. The matter having been
submitted, the Court orders as follows
24 This is a breach of contract action initiated by plaintiff
Philip Restivo ( “Plaintiff”) against
25 defendants Worldwide Ground Transportation Soluti
ons, Inc. (“Worldwide’ ””) and James Brown
26 (“Brown”), the principal of Worldwide.
27 According to the allegations of the complaint (“Complain
t”), on May 8, 2014, Restivo
28 Enterprises, Inc. (“Restivo Enterprises ’”) entered
into an agreement to sell assets (“Offer and
=
empl Be 1 ao __-
APNED vr. Newman
Agreement to Buy”) and a covenant
not to compete (“Non-Compete Agr
eement’ ”). (Complaint,
16.) The parties also executed an add
endum to the Offer and Agreement
to B uy (“Addendum”),
which states Plaintiff, individually,
was a beneficiary of the agreements
because he was to
provide consulting services to the
buyer for a period of 18 months and
personally receive
discount limousine services for the dura
tion of the Non-Compete Agreement.
(bid.)
A dispute subsequently arose betwee
n the parties resulting in them Particip
ating in a
mediation on September 17, 2015,
(Complaint, 7.) The Parties signed
a mediated settlement
agreement (“Settlement Agreement”),
by which Brown agreed that Plaintif
f was to receive
discount limousine services purs
uant to the Addendum for a valu
e of no more than $5,000.00 per
10 month, which sum was to be acc
umulated and carried over on a mon
th-to -month basis. (Jbid.)
1] Thereafter, Plaintiff made Tepeated
requests for discount limousine serv
Preview
Michael G. Ackerman, Esq. (SBN 64997) LAW OFFICES OF MICHAEL G. ACKERMAN 2391 The Alameda, Suite 100 Santa Clara, CA 95050 Telephone: (408) 261-5800 Facsimile: (408) 261-5900 Email: mga@mgackermanlaw.com Attorneys for Plaintiff, PHIL RESTIVO SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 ll PHILIP RESTIVO, Case No.: 17CV308469 12 Plaintiff, REQUEST FOR JUDICIAL NOTICE 13 vs. Date: June 14, 2019 14 WORLDWIDE GROUND Time: 9:00 7 a.m. TRANSPORTATION SOLUTIONS, INC.; Dept.: 15 JAMES BROWN, an individual; and DOES Judge: Hon. Christopher G. Rudy 1 through 5, inclusive. 16 Defendants. Trial Date: March 11, 2019 17 18 19 20 21 TO ALL PARTIES AND THEIR ATTORNEYS’ OF RECORD: Plaintiff, Philip Restivo , 2 requests that the Court take Judicial notice of the following documents: 23 24 A Defendant Worldwide Ground Transportation Solutions, Inc. and James Brown’s 25 Notice of Demurrer and Demurrer to Complaint, Memorandum of Points and Authorities; Declaration of William R. Cumming, dated June 2, 2017; 26 27 Order re: Demurrer, filed on August 10, 2017; 28 REQUEST FOR JUDICIAL NOTICE Case No.: 17CV308469 Declaration of James Brown in Support Of Worldwide Ground Transportation Solutions, Inc. And James Brown’s Motion For Summary Judgment Or In The Alternative Summary Adjudication, dated November 21, 2018; Declaration of Phil Restivo In Opposition to Motion For Summary Judgment, Or In The Alternative, Motion For Summary Adjudication. AUTHORITY Evidence Code §453 specifies that a trial court shall take judicial notice of any matter specified in Evidence Code §452 if the party requests it and: 10 "(a) Gives each adverse party sufficient notice of the request, through the pleadings or 11 otherwise, to enable such adverse party to prepare to meet the request; and 12 13 (b) Furnishes the court with sufficient information to enable it to take judicial notice 14 of the matter." 15 Evidence Code §452 provides that judicial notice may be taken of records of any court of this 16 state or any court of the record of the United States or any state of the United States, as well as 17 statutory law. (Evidence Code §§452(a)(6)(d)(1) and (d)(2)). The above documents are clearly 18 within those matters which may be judicially noticed. 19 20 Based on the foregoing, plaintiff requests that this Court to take judicial notice of the above 21 documents as well as the underlying facts in this matter. 22 23 DATED: May 77 2019 LAW OFFICES OF 24 MICHAEL G. ACKERMAN 25 26 27 By CLG ICHAEV G-A\ E) ‘AN, ESQ 28 Attorne for Plaintiff, P HIL RESTIVO REQUEST FOR JUDICIAL NOTICE Case No.: 17CV308469 Exhibit “A” to Request for Judicial Notice (re: Opposition to Motion for Attorney’s Fees) William R. Cumming, State Bar No. 200966 cumming @cummingandassociateslaw.com CUMMING & ASSOCIATES, APLC 3080 Bristol Street, Sixth Floor, Suite 630 Costa Mesa, CA 92626 Telephone: (714) 432-6494 Facsimile: (714) 202-3162 Attorneys for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA 10 i PHILIP RESTIVO, Case No. 17CV308469 12 Plaintiff, Judge Mary E. Arand Department 09 13 ¥. DEFENDANTS WORLDWIDE GROUND 14 WORLDWIDE GROUND TRANSPORTATION SOLUTIONS, INC. TRANSPORTATION SOLUTIONS, INC.; AND JAMES BROWN’S NOTICE OF 15 JAMES BROWN, an individual; and DOES 1 DEMURRER AND DEMURRER TO through 5, inclusive, COMPLAINT; MEMORANDUM OF 16 POINTS AND AUTHORITIES; Defendants. DECLARATION OF WILLIAM R. 17 a ) CUMMING 18 Hearing: 19 Date: July 27, 2017 Time: 9:00 a.m. 20 Dept.: D-09 21 Action Filed: April 12, 2017 Trial Date: None 22 23 24 25 26 met iT yw Af . 27 28 DEFENDANTS’ DEMURRER TO COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on July 27, 2017 at 9:00 a.m., or as soon thereafter as the matter may be heard in the above-entitled court located at 191 North First Street, San Jose, California 95113, Defendants Worldwide Ground Transportation Solutions, Inc. (“Worldwide”) and James Brown (“Brown,” collectively with Worldwide, “Defendants”) will demur to Plaintiff Philip Restivo’s (“Restivo”) Complaint on the following grounds: Demurrer to First Cause of Action 1 The First Cause of Action, alleging a breach of written contract, does not state facts sufficient to constitute a cause of action against Defendants. (Cal. Code Civ. Proc. § 430.10(e).) 10 2. The First Cause of Action for breach of written contract fails for uncertainty. (Cal. 11 Code Civ. Proc. § 430.10(£).) 12 This Demurrer is based upon this Notice and Demurrer; the attached Memorandum of 13 Points and Authorities; the records, pleadings and files herein; and any and all such evidence and 14 arguments as this court may deem just and proper. 15 16 Dated: June 2, 2017 CUMMING & ASSOCIATES, APLC live 17 18 By: William R. Cumming 19 Attorneys for Defendants Worldwide Ground Transportation Solutions, Inc. and 20 James Brown 21 22 23 24 25 26 27 28 2 DEFENDANTS’ DEMURRER TO COMPLAINT TABLE OF CONTENTS Description Page INTRODUCTION SUMMARY OF RELEVANT ALLEGATIONS STANDARD OF REVIEW WHEN RULING ON DEMURRER. DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT SHOULD BE SUSTAINED... A Restivo’s First Cause of Action for Breach of Contract Fails As a Matter of Law Because Restivo is not a Party to the Subject Contracts B. Restivo’s First Cause of Action for Breach of Contract Against James Brown Fails as a Matter of Law. 10 Cc. Restivo’s First Cause of Action for Breach of Contract Against il Defendants is Fatally Uncertain 12 CONCLUSION 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 3 DEFENDANTS’ DEMURRER TO COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES 1 INTRODUCTION This action involves a dispute arising out of an asset purchase agreement between as buyer, and Defendant Worldwide Ground Transportation Solutions, Inc. (“Worldwide”), (““Restivo”) is Restivo Enterprises, Inc. (‘“Restivo Enterprises”), as seller. Plaintiff Philip Restivo against not a party to the agreement, but nonetheless has filed this breach of contract action Worldwide, Worldwide, and its president James Brown (“Brown,” collectively with agreement. “Defendants”), for their alleged failures to provide limousine services under the is not a party As set forth below, Restivo’s Complaint fails to state a claim because Restivo of the asset 10 to any agreement alleged in the Complaint and is only an incidental beneficiary e agreement, he fails 11 purchase agreement. Even assuming Restivo could enforce the asset purchas 12 to allege any agreement between himself and Brown. Accordingly, Restivo’s breach of contract for uncertainty 13 claim against Brown fails as a matter of law. Finally, Restivo’s Complaint fails alleged in the 14 because it fails to sufficiently allege the parties to, or breaches of, the agreements 15 Complaint. should be sustained. 16 Based on the foregoing, Defendants’ Demurrer to Restivo’s Complaint 17 2. SU OF RELEV Ss SUMMARYNN 2 LA ANT ALLEG KY ee ATIONS 18 On April 12, 2017, Restivo filed a complaint against Defendants for breach of contract. 19 Restivo alleges in his Complaint that “On or about May 8, 2014, Restivo Enterprises, Inc. 20 (“Restivo Enterprises”) entered into an agreement to sell assets.” (Complaint, { 6.) The the Addendum to said 21 Complaint states that the subject “Offer and Agreement to Buy as well as “Agreement to 22 agreements are attached [to the Complaint] as Exhibit ‘A’,” (collectively, the 23 Buy”). (Complaint, 1 6, Ex. A.) The documents included in Exhibit “A” are as follows: 1 An Offer and Agreement to Buy, between Worldwide, as Buyer, and Restivo Enterprises, as Seller; de, 26 An Addendum to Offer and Agreement to Buy dated 5/13/14, between Worldwi 27 as Buyer, and Restivo Enterprises, as Seller; and 28 1 DEFENDANTS’ DEMURRER TO COMPLAINT 3. An Addendum to Offer and Agreement to Buy dated 5/29/14, between Worldwide, as Buyer, and Restivo Enterprises, as Seller. (Complaint, J 6, Ex. A.) Restivo also alleges that the “the parties entered into a covenant not to compete attached hereto as Exhibit ‘B’” (“Non-Compete”). (Complaint, { 6, Ex. B.) The Non-Compete agreement also is between Restivo Enterprises and Worldwide. (Complaint, {I 6, Ex. B.) Each of the documents included in Exhibits “A” and “B” is executed by Philip Restivo, as President of Restivo Enterprises, and James Brown, as President of Worldwide. (Complaint, Exs. A, B.) Restivo further alleges that “a dispute arose between the parties resulting in the parties 10 participating in a mediation pursuant to paragraph 16 of the Offer and Agreement to Buy,”’ at 11 which they entered into a mediation settlement agreement (the “Settlement Agreement”). the 12 (Complaint, { 7, Ex. C.) The Settlement Agreement expressly states it is an addendum to 13 Purchase Agreement between Restivo Enterprises and Worldwide. It is executed by James Brown, 14 on behalf of Worldwide, and Phil Restivo, on behalf of Restivo Enterprises. (Complaint, I 7, Ex. 15 C, Settlement Agreement, 2.) Restivo alleges that pursuant to the Settlement Agreement and 16 Agreement to Buy, Worldwide agreed that following its acquisition of Restivo Enterprises’ assets, 17 Restivo “was to receive discount limousine services ... for a value of no more than $5,000.00 per 18 month...” (Complaint, { 7.) 19 20 21 ' Paragraph 16 of the Offer and Agreement to Buy provides in relevant part: 22 16. Complete Agreement, Mediation, Arbitration, Attorney’s Fees: 23 ... Any party that fails to participate in the mediation of a dispute(s) arising out of this Agreement prior to initiating any court action or 24 arbitration shall waive their right to attorney’s fees and costs. In the event that mediation fails to resolve a dispute(s), the parties will 25 arbitrate in accordance with the rules of the American Arbitration Association. 26 (Complaint, {| 6, Ex. A, Offer and Agreement to Buy, {[ 16.) 27 28 2 DEFENDANTS’ DEMURRER TO COMPLAINT Restivo contends the “Defendants” breached “the aforementioned mediated settlement agreement by refusing and failing to provide discount limousine services a [sic] promised under the original addendum to Offer and Agreement to Buy and the mediated settlement agreement,” causing Restivo damages. (Complaint, { 7, 8.) Restivo requests that the Court declare that the Non-Compete is no longer in effect because it is dependent upon Defendants’ provision of the limousine services. (Complaint, { 8.) As set forth below, Restivo’s allegations are fatally uncertain and without merit as a matter of law. 3. STANDARD OF REVIEW WHEN RULING ON DEMURRER 10 A demurrer tests the sufficiency of a pleading by raising questions of law. (Buford v. State il (1980) 104 Cal.App.3d 811, 818.) Code of Civil Procedure section 430.10 provides that a party 12 may file a demurrer to the complaint where the pleading “does not state facts sufficient to 13 constitute a cause of action,” or is uncertain, ambiguous, and unintelligible. (Cal. Code Civ. Proc., 14 § 430.10(e), (£).) 15 In ruling on a demurrer, the court must assume the truth of all properly pled material 16 allegations of fact. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 635.) However, while a demurrer 17 admits all material facts that were properly pled, a demurrer does not assume the truth of 18 contentions, deductions, or conclusions of facts or law. (Leyva v. Nielsen (2000) 83 Cal.App.4th 19 1061, 1063; Freeman v. San Diego Ass’n of Realtors (1999) 77 Cal.App.4th 171, 189.) 20 Moreover, “[uJnder the doctrine of truthful pleading, the courts will not close their eyes 21 to situations where a complaint contains allegations of fact inconsistent with attached 22 documents, or allegations contrary to facts which are judicially noticed . . . False allegations of 23 fact, inconsistent with annexed documentary exhibits [citation] or contrary to facts judicially noticed [citation], may be disregarded . . . .”. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 25 Cal.App.4th 390, 400 (quotations omitted). 26 When a demurrer is sustained, the plaintiff bears the burden of showing how the defect can 27 be cured by amendment. (Blatty v. N Y. Times Co. (1986) 42 Cal.3d 1033, 1040-41; Goodman v. 28 3 DEFENDANTS’ DEMURRER TO COMPLAINT Kennedy (1976) 18 Cal.3d 335, 349.) Where the plaintiff fails to do so, or if it is clear that the defect cannot be cured, the demurrer is properly sustained without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-43; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 4, DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT SHOULD BE SUSTAINED A. AESHVO'S First Lause Restivo’s Lirst Action For of Acion Cause of Lor ora of Contract Fails As A— Matter Breach ee——e~—— ee of Law Because Restivo Is Not A Party To The Subject Contracts Restivo’s First Cause of Action fails as a matter of law because Restivo is not a party to any agreement pled in the Complaint, and to the extent he has any rights under the alleged 10 agreements, is only an incidental beneficiary of the alleged agreements. The elements of a cause 11 of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or 12 excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff. 13 (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, a Otworth v. Southern Pac. 14 Transp. Co. (1985) 166 Cal.App.3d 452, 458.) 15 In this case, Restivo cannot state a claim for breach of contract because he has failed to 16 sufficiently plead the existence or breach of a contract between himself and any party to the 17 Complaint. The Agreement to Buy and Non-Compete attached to the Complaint as Exhibits A and 18 B make clear that the contracts were solely between Worldwide and Restivo Enterprises. The 19 Exhibits identify the parties to the agreements and addenda, as Restivo Enterprises as “Seller,” and 20 Worldwide as “Buyer.” (Complaint, J 6, Exs. A, B.) By its plain terms, the Settlement Agreement 21 is an addendum to the existing Agreement to Buy entered into by and between Restivo Enterprises 22 and Worldwide. (Complaint, Ex. C.) 23 Mr. Restivo signed the Agreement to Buy, Non-Compete and Settlement Agreement on behalf of Restivo Enterprises. (Complaint, Exs. A, B, C.) He therefore has no rights or obligations 25 under, and is not a party to, the Agreement to Buy and addenda thereto, including the Settlement 26 Agreement. (See, e.g., Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830, 27 28 4 DEFENDANTS’ DEMURRER TO COMPLAINT 837 [‘‘Since it is apparent from the face of the account agreement that Tweed signed as the agent of CapWest, he is not a party to the agreement with rights and obligations thereunder”].) Restivo similarly has no rights or obligations as a third party beneficiary of any alleged agreement. California Civil Code section 1559 provides that “[a] contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” (Cal. Civ. Code, § 1559.) “However, it is well settled that Civil Code section 1559 excludes enforcement of a contract by persons who are only incidentally or remotely benefited by it.” (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1138) 10 “A third party may qualify as a beneficiary under a contract where the contracting parties i must have intended to benefit that third party and such intent appears on the terms of the contract.” 12 (Id. at 1138.) “‘[A]n intent to make the obligation inure to the benefit of the third party must have 13 been clearly manifested by the contracting parties.” (Id.) ‘““The fact that the third party is only 14 incidentally named in the contract or that the contract, if carried out to its terms, would inure to the 15 third party’s benefit is insufficient to entitle him or her to demand enforcement.’” (Bancomer, S. 16 A. v. Superior Court (1996) 44 Cal.App.4th 1450; Walters v. Calderon (1972) 25 Cal.App.3d 863.) 17 “Whether a third party is an intended beneficiary or merely an incidental beneficiary to the 18 contract involves construction of the parties’ intent, gleaned from reading the contract as a whole 19 in light of the circumstances under which it was entered.’” (Id.) Here, Restivo erroneously alleges that he is a third party beneficiary based on the subject 21 agreements’ reference to consulting services he provided for 18 months, and Worldwide’s alleged 22 agreement to allow him the use of its vehicles. (Complaint, [ 6.) However, it is apparent from Agreement to Buy and its addenda (including the Settlement Agreement) that the primary purpose 24 of the agreements is the sale of Restivo Enterprises’ assets to Worldwide. Nowhere in the 25 Agreement to Buy or in the addenda thereto do the parties expressly state that Restivo is an 26 intended beneficiary of the agreement. Restivo’s merely being identified as a recipient of 27 limousine services in the agreement is insufficient to establish his being an express beneficiary. 28 5 DEFENDANTS’ DEMURRER TO COMPLAINT (Bancomer, S. A., 44 Cal.App.4th 1450.) Accordingly, Restivo is only an incidental beneficiary under the alleged agreement(s). Because Restivo is not a party to or express beneficiary of any agreement alleged in the Complaint, he cannot state a claim for breach of contract. (Sheppard v. Banner Food Products, Inc. (1947) 78 Cal.App.2d 808, 812 [holding “Plaintiff has no right to enforce performance of the [] contract. He was not a party to it and it was not made specifically for his benefit... . Ifa contract is not made expressly for his benefit, it may not be enforced by him even though he would be incidentally benefited by performance.”].) B. Restiyo’s First Cause of Action For Breach of Contract Against James Brown 10 Fails As A Matter of Law 11 Even assuming Restivo can enforce the alleged agreements, Restivo’s first cause of action 12 for breach of contract fails against Brown, because Restivo fails to sufficiently plead the existence 13 or breach of a contract between himself and Brown. As previously stated, the Agreement to Buy 14 and the addenda thereto (including the Settlement Agreement) make clear that the agreements were 15 solely between Worldwide and Restivo Enterprises. The obligations in the agreements are those of 16 Worldwide, not Mr. Brown. (Complaint, {][ 6-7, Exs. A, B,C.) Mr. Brown signed the alleged 17 agreements on behalf of Worldwide. (Complaint, 1] 6-7, Exs. A, B, C.) He therefore has no rights 18 or obligations under, and is not a party to, the alleged agreements. (See, e.g., Ronay Family Limited 19 Partnership, supra, 216 Cal.App.4th at 837.) 20 Because the Agreement to Buy and addenda thereto leave no doubt that Mr. Brown is not a 21 party to the subject contracts, Restivo cannot allege a breach of contract action against him. 22 (Oppenheimer v. Gen. Cable Corp. (1956) 143 Cal.App.2d 293, 297 [no right to maintain action 23 against a defendant for promises made in a contract where defendant is not a party to the contract]; Seymour v. Christiansen (1991) 235 Cal.App.3d 1168, 1172 [sustaining demurrer on grounds that 25 the individual defendants cannot be liable because they were not parties to the contract]; Gordon Bldg. Corp. v. Gibraltar Sav. & Loan Ass’n. (1966) 247 Cal.App.2d 1, 6 [A complaint fails to state 27 28 6 DEFENDANTS’ DEMURRER TO COMPLAINT party tothe contract and a cause of action for breach of contract if it fails to allege that plaintiff is a the performance of conditions precedent.].) breached any In sum, Restivo cannot and has not alleged that Mr. Brown entered into or agreement between himself and Mr. Brown. Accordingly, Mr. Brown’s demurrer to Restivo’s breach of contract cause of action should be sustained without leave to amend. ants Is Cc. Restivo’s First Cause of Action For Breach of Contract Against Defend Fatally Uncertain fails because it Restivo’s first cause of action for breach of contract against Defendants also defendants cannot is fatally uncertain. If a complaint is so uncertain or ambiguous that the reaso nably determine what issues must be admitted or denied, or what counts 10 reasonably respond, y v. Maly’s of 11 or claims are directed against them, then a demurrer will be sustained. (Khour 12 California, Inc. (1993) 14 Cal.App.4th 612, 616.) charges 13 The “‘purpose of a complaint is to furnish the defendants with certain definite his finger squarely and 14 which can be intelligently met .... The point is that the accuser must place n California 15 directly upon whatever dereliction is relied upon.” (Zumbrun v. University of Souther p.2d 59, 69.) “It is settled 16 (1972) 25 Cal.App.3d 1, 8, quoting Lavine v. Jessup (1958) 161 Cal.Ap facts must be alleged 17 law that a pleading must allege facts and not conclusions, and that material (1979) 88 18 directly and not by way of recital.” (Ankeny v. Lockheed-Missiles & Space Co. a determination of the 19 Cal.App.3d 531, 537.) Further, “in pleading, the essential facts upon which is left to 20 controversy depends should be stated with clearness and precision so that nothing left to 21 surmise.” (Id.) “Those recitals, references to, or allegations of material fact which are 22, surmise are subject to special demurrer for uncertainty.” (Id.) Restivo fails to First, Restivo’s breach of contract action is fatally uncertain because of the Complaint. 24 specifically allege the parties to the alleged agreements that are the subject assets” and the 25 Restivo alleges that “Restivo Enterprises, Inc. entered into an agreement to sell 26 “the parties entered into a covenant not to compete.” (Complaint, ] 6 [emphasis added].) Restivo any of the parties 27 therefore only alleges one party to the Agreement to Buy, and does not identify 28 7 DEFENDANTS’ DEMURRER TO COMPLAINT to the Non-Compete. The exhibits show that the parties to these agreements are Restivo Enterprises and Worldwide. (Complaint, 6, Exs. A, B.) However, Restivo has brought this action in his own name, and sued Mr. Brown in his individual capacity. It therefore is entirely unclear which parties Restivo claims are parties to the agreements attached as Exhibits A and B. To make matters more confusing, Restivo next alleges that a “dispute arose between the parties resulting in the parties participating in a mediation pursuant to paragraph 16 of the Offer and Agreement to Buy,” and “the parties sign[ing] a mediated settlement agreement.” (Complaint, 17.) Again, the Agreement to Buy attached as Exhibit A states it is between Restivo Enterprises and Worldwide. Therefore, any mediation conducted pursuant to paragraph 16 of that 10 agreement would be between Restivo Enterprises and Worldwide. However, Restivo fails to i allege the parties to Exhibit C, instead identifying them merely as “the parties.” 12 Second, Restivo fails to clearly identify which defendants engaged in the conduct — i.e., the 13 alleged breaches~ complained of in the Complaint. Restivo broadly alleges that “Defendants have 14 breached the aforementioned mediated settlement agreement by refusing and failing to provide 15 discount limousine services a [sic] promised under the original addendum to Offer and Agreement 16 to Buy and the mediated settlement agreement.” (Complaint, 8.) Restivo alleges “Defendants 17 stated] either that they were too busy or that they did not have a driver.” (Complaint, { 8.) 18 Restivo’s allegations fail to distinguish among the Defendants — i.e.; to state which 19 “Defendants” allegedly failed to provide the discounted limousine services or stated that they were 20 too busy or did not have a driver. Restivo thus fails to make clear the basis for each of the 21 Defendant’s alleged obligations under and purported breaches of the alleged agreement(s). (Wise 22 v. S. Pac. Co. (1963) 223 Cal.App.2d 50, 60 [defendant’s breach must be stated with certainty].) In short, Restivo’s Complaint fails to make clear which parties are alleged to have entered into each agreement, which parties are alleged to have breached the agreements, and under which provisions those parties were obligated to perform. Because Restivo fails to properly identify the 26 parties to the alleged contracts or to distinguish among the Defendants throughout his claim, 27 Restivo’s breach of contract claim fail to provide Defendants with sufficient information to 28 8 DEFENDANTS’ DEMURRER TO COMPLAINT surmise the claims against them. Accordingly, Restivo’s claims against Defendants are rendered fatally uncertain. 5 CONCLUSION Based on the foregoing, Defendants respectfully requests that the Court sustain the Demurrer to Restivo’s First Cause of Action. Dated: June 2, 2017 CUMMING & ASSOCIATES, APLC By.IMR William R. Cumming 10 Attorneys forDefendants Worldwide Ground Transportation OD Inc. and i James Brown 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANTS’ DEMURRER TO COMPLAINT D ECLARATION OF WILLIAM R. CUMMING 1 Iam an attorney at law licensed to practice before all courts in the State of California and am an attorney at the law firm of Cumming & Associates, APLC. This firm serves as attorney of record for Defendants Worldwide Ground Transportation Solutions, Inc. and James Brown. The facts set forth in this declaration are based upon my personal knowledge. I could and would competently testify as to all the matters set forth herein if called upon to do so. 2. The purpose of this declaration is to describe my efforts to comply with Code of Civil Procedure § 430.41 before filing the demurrer. 3 Section 430.41 states before filing a demurrer pursuant to this chapter, the 10 demurring party shall meet and confer in person or by telephone with the party who filed the 11 pleading that is subject to demurrer for the purpose of determining whether an agreement can be 12 reached that would resolve the objections to be raised in the demurrer. 13 4. Attached as Exhibit 1 is a true and correct copy of an e-mail dated May 19, 2017 14 demonstrating my efforts to meet and confer with Philip Restivo’s counsel before filing a 15 demurrer. 16 5 Despite ongoing efforts, we did not reach an agreement resolving the objections 17 raised in the demurrer. 18 I declare under penalty of perjury under the laws of the State of California that the 19 foregoing is true and correct. 20 #fornia. + 21 William R. Cumming 22 23 25 26 27 28 10 DEFENDANTS’ DEMURRER TO COMPLAINT EXHIBIT 1 Bill Cumming : From: Bill Cumming Sent: Friday, May 19, 2017 8:33 PM To: ‘Michael G Ackerman’ Ce: Anderson CAL Subject: RE: Philip Restivo v. Worldwide Ground Transportation, et al. Mike, Hello. The purpose of this e-mail is tosatisfy the requirements of Code of Civil Procedure § 430.41 before we file a demurer to the complaint. Section 430.41 states before filing a demurer, we need to “meet and confer” for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The complaint has one cause of action for breach ofcontract. ‘As to James Brown, the demurrer will be based upon the fact that he is not a party to purchase agreement and therefore should not have been named in the complaint. As to Worldwide, the demurrer will be based upon the fact that Phil Restivo, as an individual, does not have the ability to enforce the terms of the purchase agreement because he is not a party to the purchase agreement or ‘and intended third party beneficiary. At best, he is only an incidental beneficiary and accordingly cannot enforce the contract terms. Section 430.41 states the parties shall meet and confer at least five days before the date the responsive pleading is due. The deadline for Worldwide to respond to the complaint is May 22. I recommend we schedule a time to discuss the above on the telephone and we also need an agreement that you will not file and entry of default as to Worldwide after May 22. Please let me know your availability to talk on May 22. Thanks William R. Cumming, Esq. Cumming & Associates, APLC 3080 Bristol Street, Suite 630 Costa Mesa, CA 92626 ~ Telephone No.: (714) 432-6494 Direct Dial No.: (714) 754-0120 Facsimile No.: (714) 202-3162 E-mail: cumming@cummingandassociateslaw.com www.cummingandassociateslaw.com From: Michael G Ackerman [mailto:mga@maackermanlaw.com} Sent: Tuesday, May 16, 2017 2:32 PM To: 'Bill Cumming’ Ce: Phil Subject: RE: Philip Restivo v. Worldwide Ground Transportation, et al. Both were sub-served. James Brown on April 25, 2017 and Worldwide on April 21, 2017. From: Bill Cumming jtozcur fassol law.cot Sent: Tuesday, May 16, 2017 1:53 PM To: Michael G Ackerman Cc: Laurie Stclaire Subject: Phillp Restivo v. Worldwide Ground Transportation, et al. Mike, It is my understanding you served both Worldwide and James Brown, but at different times. I looked on the court docket and was unable to determine when either were served. Can you please confirm the dates of service for each. Thanks William R. Cumming, Esq. Cumming & Associates, APLC 3080 Bristol Street, Suite 630 Costa Mesa, CA 92626 Telephone No.: (714) 432-6494 Direct Dial No.: (714) 754-0120 Facsimile No.: (714) 202-3162 E-mail: cumming@cummingandassociateslaw.com www.cummingandassociateslaw.com PROOF OF SERVICE Philip Restivo v. Worldwide Ground Transportation Solutions, Inc. and James Brown Case No. 17CV308469 Iam employed in the City of Costa Mesa, County of Orange, State of California. Iam Bristol over the age of 18 years and not a party to the within action. My business address is 3080 Street, Suite 630, Costa Mesa, California 92926. On June 5, 2017, I served the following documents on the parties identified in the attached service list. DEFENDANTS WORLDWIDE GROUND TRANSPORTATION SOLUTIONS, INC. AND JAMES BROWN’S NOTICE OF DEMURRER AND DEMURRER TO N COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIO OF WILLIAM R. CUMMING 10 Q (BY MAIL) I caused each such envelope, with postage thereon fully prepaid, to be placed in the United States mail at Costa Mesa, California. Tam readily familiar with the i practice of collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection. 13 o (BY PERSONAL SERVICE) I personally handed to the parties identified in the 14 attached service list. 45 o (BY OVERNITE EXPRESS) J am readily familiar with the practice of 16 collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained for 17 overnight delivery. 18 Oo (BY FACSIMILE) I caused to be sent via facsimile the document(s) described 19 herein and listed on the attached service list. 20 xX (BY EMAIL) I caused to be electronically transmitted the document(s) described herein and listed on the attached service list. My electronic service address is 21 stclaire@cummingandassociateslaw.com. 22 Ideclare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 5, 2017, at Mesa, California. 25 26 Frsrwe Ly Chi Laurie St. Claire 27 28 1 PROOF OF SERVICE SERVICE LIST Philip Restivo v. Worldwide Ground Transportation Solutions, Inc. and James Brown Case No. 17CV308469 Michael G. Ackerman, Esq. mga@mgackermanlaw.com Law Offices of Michael G. Ackerman 2391 The Alameda, Suite 100 Santa Clara, CA 95050 Telephone: 408-261-5800 Facsimile: 408-261-5900 Counsel for Plaintiff Philip Restivo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 26 27 2 PROOF OF SERVICE Exhibit “B” to Request for Judicial Notice (re: Opposition to Motion for Attorney’s Fees) FSS F Se CCEATED lsve i. TLE Fie AUG 1 0-2017 Clerk of the Court * Superior Court of CA County of Santa Clay or enry Reemisrase SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 PHILIP RESTIVO, Case No. 17-CV-308469 2 13 Plaintiff, ORDER RE: DEMURRER 14 VS. 15 WORLDWIDE GROUND TRANSPORTATION 16 SOLUTIONS, INC., et al., 17 Defendants. 18 19 20 21 The demurrer filed by defendants Worldwide Groun d Transportation Solutions, Inc. and 22 James Brown came on for hearing before the Honor able Mary E. Arand on August 8, 2017, at 23 9:00 a.m. in Department 9. The matter having been submitted, the Court orders as follows 24 This is a breach of contract action initiated by plaintiff Philip Restivo ( “Plaintiff”) against 25 defendants Worldwide Ground Transportation Soluti ons, Inc. (“Worldwide’ ””) and James Brown 26 (“Brown”), the principal of Worldwide. 27 According to the allegations of the complaint (“Complain t”), on May 8, 2014, Restivo 28 Enterprises, Inc. (“Restivo Enterprises ’”) entered into an agreement to sell assets (“Offer and = empl Be 1 ao __- APNED vr. Newman Agreement to Buy”) and a covenant not to compete (“Non-Compete Agr eement’ ”). (Complaint, 16.) The parties also executed an add endum to the Offer and Agreement to B uy (“Addendum”), which states Plaintiff, individually, was a beneficiary of the agreements because he was to provide consulting services to the buyer for a period of 18 months and personally receive discount limousine services for the dura tion of the Non-Compete Agreement. (bid.) A dispute subsequently arose betwee n the parties resulting in them Particip ating in a mediation on September 17, 2015, (Complaint, 7.) The Parties signed a mediated settlement agreement (“Settlement Agreement”), by which Brown agreed that Plaintif f was to receive discount limousine services purs uant to the Addendum for a valu e of no more than $5,000.00 per 10 month, which sum was to be acc umulated and carried over on a mon th-to -month basis. (Jbid.) 1] Thereafter, Plaintiff made Tepeated requests for discount limousine serv