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BERNARD S. GREENFIELD (SBN 66017) Electronically Filed
MAUREEN A. HARRINGTON (SBN 194606) by Superior Court of CA,
GREENFIELD LLP County of Santa Clara,
55 South Market Street, Suite 1500 on 8/11/2020 3:34 PM
San Jose, California 95113 Reviewed By: R. Tien
Telephone: (408) 995-5600
Case #16CV295297
Facsimile: (408) 995-0308
Envelope: 4746673
Attorneys for Plaintiffs and Cross Defendants GARDEN CITY, INC.,
dba CASINO M8TRIX, and JEANINE LUNARDI, an Individual and as
Personal Representative for PETER V. LUNARDI, Ill and
Cross-Defendant PATRICK TIERNEY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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11 GARDEN CITY, INC., doing business as Case No: 16CV295297
CASINO MB8TRIX, a California corporation,
12 etal., AMENDED NOTICE OF DEMURRER
AND DEMURRER TO ERIC
13 Plaintiffs, SWALLOW’S THIRD AMENDED
vs. CROSS-COMPLAINT BY PATRICK
14 TIERNEY
ERIC SWALLOW, an Individual, et al., [CCP 430.10]
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Defendants. Date: September 17, 2020
16 Time: 9:00 a.m.
Dept.: 6
ait Before: Hon. Maureen A. Folan
18 Complaint Filed: May 17, 2016
AND RELATED CROSS-ACTION Trial Date: None Set
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21 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
22 NOTICE IS HEREBY GIVEN that on September 17, 2020 at 9:00 a.m., or as soon
23 thereafter as the matter may be heard, in Department 6 of the above-captioned Court,
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located at 191 North First Street, San Jose, California 95113, Cross-Defendant PATRICK
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TIERNEY will and hereby does move this Court for an Order sustaining Cross-
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Defendant's Demurrer to Cross-Complainant Eric Swallow’s (“Swallow”) Third Amended
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28 AMENDED NOTICE OF DEMURRER AND DEMURRER TO ERIC SWALLOW’
THIRD AMENDED CROSS-COMPLAINT
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Cross-Complaint (the “TACC”) without leave to amend pursuant to Code of Civil
Procedure section 430.10.
Cross-Defendant’s Demurrer will be based on this Notice of Demurrer and Demurrer,
the Amended Memorandum of Points and Authorities in Support of Demurrer, the
Declaration of Maureen A. Harrington in Support; and the Request for Judicial Notice, all
filed and submitted concurrently herewith, the Court’s files and records in this action, and
on such further oral and documentary evidence as may be presented at the time of the
hearing.
Cross-Defendants demur to the in the TACC as follows:
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1. The First Cause of Action fails to state sufficient facts to constitute a cause of
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action against Mr. Tierney and is uncertain since it does not specify what requests
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13 for documents were made to Mr. Tierney as a director, or what he failed to provide
14 to the cross-complainant. (Code Civ. Proc., § 430.10 subd. (e) and (f).) In addition,
15 the cause of action fails to identify any breach of fiduciary duty by Mr. Tierney for
16 purported failure to indemnify or pay distributions to cross-complainant since such
ait distributions would be in violation of law. (/bid.) Finally, the allegations do not meet
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the standard necessary to overcome the business judgment rule. (/bid., Corps.
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Code, § 309.)
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The Second Cause of Action fails to state sufficient facts to constitute a cause of
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action against Mr. Tierney and is uncertain because no contracts are alleged to
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exist between Mr. Tierney and the cross-complainant that have been breached and
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24 further no damages are alleged to have been proximately caused by the actions of
25 Mr. Tierney (Code Civ. Proc., § 430.10 subd. (e) and (f).) Also, the allegations do
26 not meet the standard necessary to overcome the business judgment rule. (/bid.,
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28 AMENDED NOTICE OF DEMURRER AND DEMURRER TO ERIC SWALLOW’
THIRD AMENDED CROSS-COMPLAINT
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Corps. Code, § 309.)
The Fourth Cause of Action fails to state sufficient facts to constitute a cause of
ction against Mr. Tierney and is uncertain because Mr. Swallow is not entitled to
indemnity as a matter of law and contract and the allegations do not meet the
standard necessary to overcome the business judgment rule. (Code Civ. Proc., §
430.10 subd. (e) and (f); Corps. Code, § 309.)
The Fifth Cause of Action fails to state sufficient facts to constitute a cause of
action against Mr. Tierney and is uncertain because the purported failure to pay
distributions to cross-complainant does not support a claim for conversion and
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since such distributions would be in violation of law and there is no adequate
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allegation that Mr. Tierney wrongfully interfered with the possession of Mr.
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13 Swallow's funds. (Code Civ. Proc., § 430.10 subd. (e) and (f).)
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14 The Sixth Cause of Action fails to state sufficient facts to constitute a cause of
15 action against Mr. Tierney and is uncertain because with the failure of the first,
16 second, fourth and fifth counts, there is no need for an accounting. (Code Civ.
17 Proc., § 430.10 subd. (e) and (f).)
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Dated: August 11, 2020 GREEMFIE, LP
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21 AUR A.Hi GTON
Attorneys for Cross-Defendants GARDEN
22 CITY, INC., JEANINE LUNARDI, and
PATRICK TIERNEY
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28 AMENDED NOTICE OF DEMURRER AND DEMURRER TO ERIC SWALLOW’S
THIRD AMENDED CROSS-COMPLAINT
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