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  • Garden City, Inc. v. Eric Swallow, et al. Business Tort/Unfair Bus Prac Unlimited (07)  document preview
  • Garden City, Inc. v. Eric Swallow, et al. Business Tort/Unfair Bus Prac Unlimited (07)  document preview
  • Garden City, Inc. v. Eric Swallow, et al. Business Tort/Unfair Bus Prac Unlimited (07)  document preview
  • Garden City, Inc. v. Eric Swallow, et al. Business Tort/Unfair Bus Prac Unlimited (07)  document preview
  • Garden City, Inc. v. Eric Swallow, et al. Business Tort/Unfair Bus Prac Unlimited (07)  document preview
  • Garden City, Inc. v. Eric Swallow, et al. Business Tort/Unfair Bus Prac Unlimited (07)  document preview
						
                                

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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 10 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] 15 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 19 20 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, 24 located at 191 North First Street, San Jose, California 95113, Cross-Defendant PATRICK 25 TIERNEY will and hereby does move this Court for an Order sustaining Cross- 26 Defendant's Demurrer to Cross-Complainant Eric Swallow’s (“Swallow”) Third Amended 27 28 AMENDED NOTICE OF DEMURRER AND DEMURRER TO ERIC SWALLOW’ THIRD AMENDED CROSS-COMPLAINT 1 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: 10 1. The First Cause of Action fails to state sufficient facts to constitute a cause of 11 action against Mr. Tierney and is uncertain since it does not specify what requests 12 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 18 the standard necessary to overcome the business judgment rule. (/bid., Corps. 19 Code, § 309.) 20 The Second Cause of Action fails to state sufficient facts to constitute a cause of 21 action against Mr. Tierney and is uncertain because no contracts are alleged to 22 exist between Mr. Tierney and the cross-complainant that have been breached and 23 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., 27 28 AMENDED NOTICE OF DEMURRER AND DEMURRER TO ERIC SWALLOW’ THIRD AMENDED CROSS-COMPLAINT 2 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 10 since such distributions would be in violation of law and there is no adequate 11 allegation that Mr. Tierney wrongfully interfered with the possession of Mr. 12 13 Swallow's funds. (Code Civ. Proc., § 430.10 subd. (e) and (f).) 6 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).) 18 Dated: August 11, 2020 GREEMFIE, LP 19 20 21 AUR A.Hi GTON Attorneys for Cross-Defendants GARDEN 22 CITY, INC., JEANINE LUNARDI, and PATRICK TIERNEY 23 24 25 26 27 28 AMENDED NOTICE OF DEMURRER AND DEMURRER TO ERIC SWALLOW’S THIRD AMENDED CROSS-COMPLAINT 3