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  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
  • Fenton Law Group, LLP vs Benson, Doug, MD(06) Unlimited Breach of Contract/Warranty document preview
						
                                

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1 WILLIAM E. KRUSE, Ed. D., Esq. (SBN 166067) KRUSE LAW CORPORATION 2 P.O. Box 1746 Rancho Cordova, CA 95741-1746 1/25/2021 3 Telephone: (916) 564-4800 4 Attorney for Defendant and Cross-Complainant, DOUG BENSON, M.D. 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF BUTTE, NORTH BUTTE COUNTY DISTRICT 10 UNLIMITED CIVIL CASE 11 -oOo- 12 13 FENTON LAW GROUP, LLP, CASE NO.: 20CV01537 14 OPPOSITION OF DOUG BENSON, Plaintiff, M.D. TO THE DEMURRER TO THE 15 v. CROSS-COMPLAINT, MEMORANDUM OF POINTS AND 16 DOUG BENSON, M.D., AUTHORITIES IN SUPPORT 17 HEREOF. Defendant. Date: February 5, 2021 18 _____________________________________ Time: 1:30 P.M. 19 Dept.: TBD AND RELATED CROSS-ACTION. [Honorable Judge: Gary B. Gibson] 20 21 TO THE HONORABLE SUPERIOR COURT JUDGE GARY B. GIBSON, AND 22 PLAINTIFF/CROSS-DEFENDANT THROUGH THEIR COUNSEL OF RECORD: 23 COMES NOW, DOUG BENSON M.D., through his attorney Dr. William E. Kruse of 24 Kruse Law Corporation, and herein opposes Cross-Defendants (XD) demurrer to his cross- 25 complaint (XC). The demur by XD is seemingly to each and every one of the causes of action in 26 said XC, yet their motion repeats the “First Cause of Action” seven times. This ambiguity 27 contradicts the requirements of CCP § 430.60 which requires distinct specifications of the 28 -1- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 grounds upon which any of the objections are taken, and unless the demurrer does so it may be 2 disregarded. Here, they simply repeat the contention that the XC is for legal malpractice and as 3 such any claim between an attorney and client is barred per CCP § 340.6 (they do not challenge 4 any claim elements with respect to any cause of action alleged in Dr. Benson’s XC). Hence, the 5 demurrer to each cause of action may be disregarded by the Court as overly broad, non-statutory 6 specific contentions. 7 In this case, the gravamen of the XC, as alleged therein, involves fraud, conversion of 8 property and funds, and other matters which are outside the general scope of providing legal 9 services. This includes but is not limited to the fact that XD is fraudulently attempting to collect 10 on its false billing statements involving hundreds of thousands of dollars even though it promised 11 no further charges would be incurred by Dr. Benson. XD has failed to turn over all of Dr. 12 Benson’s property and files; moreover, its recent and continuing collection attempts include letter 13 demands of June 19, 2020 and July 20, 2020 – see paragraphs 36 and 37 of the XC. 14 The legislative purpose of CCP §340.6 is to curb malpractice insurance. This purpose is 15 not served in this case as Plaintiff attorneys commenced this action and Dr. Benson is simply 16 reacting by defending the action; presenting his claims for relief so they can be justly decided 17 together in one action. By way of demur, Cross-Defendants attempt to use 340.6 offensively, not 18 defensively, to cut-off Dr. Benson’s claims in a draconian fashion yet it is the very fraudulent 19 conduct and continuing withholding of client files which “supports” its arguments. It contends 20 this action is a “simple collection matter” which indeed simply hides their actions and abuses – 21 justice should not be so limited as indeed provided in the Maxims of Jurisprudence in Civil Code 22 §§ 3509-3548 - para. 12 of the XC and the seventh claim for equitable/promissory estoppel). 23 According, as alleged in the XC, Dr. Benson has alleged facts sufficient to constitute the 24 causes of action and thus they are not barred by CCP § 340.6 per Lee. Yes, Dr. Benson did file a 25 previous action against FLG on July 19, 2019 in Los Angeles County (see Exh. “C” by XD), yet 26 it was never served and dismissed without prejudice (see Exhibits “A” and “B” in RJN by XD) 27 due to, at the time, Dr. Benson’s unavailability of resources in Los Angeles County. 28 MEMORANDUM OF POINTS AND AUTHORITIES -2- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 I. INTRODUCTION AND PROCEDURAL HISTORY 2 This case involves greed, egregious fraud, conversion, and non-professional unfair 3 competition and business matters involving esteemed Dr. Benson and XD within the aegis of past 4 and present continuing tortuous actions and conduct. Justice will only be accomplished by 5 denying the demurrer. 6 II. LEGAL ANAYLSIS AND ARGUMENT 7 A. The tests for a demurrer as well as California Code of Civil Procedure § 340.6 do not bar the causes of action in the Cross-Complaint. 8 9 Courts must liberally construe complaints which includes cross-complaints, favoring 10 substance over form, with the ultimate goal of trying cases on their merits. (See Code of Civil 11 Procedure § 452; Civil Code § 3528; Youngman v. Nev. Irrigation Dist. (1969) 70 Cal.2d 240, 24- 12 245.). A demurrer tests the allegations in the operative complaint “…as well as any facts that 13 may be reasonably implied or inferred from those expressly alleged.” (Schifando v. City of Los 14 Angeles (2003) 31 Cal. 4th 1074, 1081 [6 Cal. Rptr.3d 457, 79 P.3d 569].). “A demurrer tests the 15 pleading alone, and not the evidence or the facts alleged.” (City of Atascadero v. Merrill Lynch, 16 Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.). The Court “must accept as true 17 not only those facts alleged in the complaint but also the facts that may be implied or inferred 18 from those expressly alleged.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App. 4th 19 1397, 1403.) Courts may also consider matters that may be judicially noticed (Rakestraw v. Cal. 20 Physicians Serv. (2000) 81 Cal.App. 4th 39, 43.) When reviewing a complaint at the demurrer 21 stage, courts give the complaint [or cross-complaint] a reasonable interpretation, reading it as a 22 whole and its parts in their context. (Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 23 125.) A demurrer must dispose of an entire cause of action (Code Civil Proc., § 430.50, subd.(a); 24 Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must 25 dispose of an entire cause of action to be sustained.”].) 26 California Code of Civil Procedure section 340.6 provides in relevant part as following: 27 (a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be 28 commenced within one year after the plaintiff discovers, or through the use of -3- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, 2 whichever occurs first. … Except for a claim for which the plaintiff is required to establish the plaintiff’s factual innocence, the time for commencement of legal 3 action shall not exceed four years except that the period shall be tolled during the time that any of the following exist: 4 (1) The plaintiff has not sustained actual injury. (2) The attorney continues to represent the plaintiff regarding the specific subject 5 matter in which the alleged wrongful act or omission occurred. 6 (3) The attorney willfully conceals the facts constituting the wrongful act or omission when those facts are known to the attorney, except that this subdivision 7 shall toll only the four-year limitation. …. 8 (b) In an action based upon an instrument in writing, the effective date of which 9 depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of that act or event. 10 (CCP § 340.6, Amended by Stats. 2019, Ch. 13, Sec. 2. (AB 692) Effective January 1, 2020, 11 (emphasis added). Likewise, the principles of continuous accrual, discovery rule, and continuing 12 violation doctrines apply here. “They key is whether the conduct complained of constitutes a 13 continuing pattern and course of conduct as opposed to unrelated acts. If there is a pattern, then 14 the suit is timely if ‘the action is filed within one year of the most recent [violation’ [citation], and 15 the entire course of conduct is at issue.” (Joseph v. J.J. MacIntrye Companies, L.L.C. (N.D. Cal. 16 2003) 281 F. Supp 2d. 1156, 1161); also, Komarova v. National Credit Acceptance (2009) 175 17 Cal.App.4th 324. The continuing violation doctrine as applied to collection actions is proper just 18 as those alleged in the XC (see paragraphs 12, 34 through 37 alleging the actions on June 19, 19 2020 and July 20, 2020 as well as the under the discovery rule as Dr. Benson still does not have 20 all of his property from XD to know what other actions and general business matters it has 21 violated – see para. 36). “[I]n some instances, the accrual of a cause of action in tort is delayed 22 until the plaintiff discovered (or reasonably should have discovered or suspected) the factual basis 23 for his or her claim. [Citation.]” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1248 [7 Cal.Rptr.3d 24 576, 80 P.3d 676]; see also Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 [27 25 Cal.Rptr.3d 661, 110 P.3d 914]; Samuels v. Mix (1999) 22 Cal.4th 1, 9 [91 Cal.Rptr.2d 273, 989 26 P.2d 701]; Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 397-398 [87 Cal.Rptr.2d 453, 981 P.2d 27 79].) The discovery rule postpones accrual of the cause of action. It “may be expressed by the 28 -4- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 Legislature or implied by the courts. [Citation.]” (Norgart v. Upjohn Co., supra, at p. 397; 2 see Samuels v. Mix, supra, at p. 9.). When the issue is accrual, belated discovery is usually a 3 question of fact, but may be decided as a matter of law when reasonable minds cannot differ. (E- 4 Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320 [64 Cal.Rptr. 3d 9].). 5 The discovery rule is designed to protect plaintiffs who were unaware of their claims (April 6 Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 826-827 [195 Cal. Rptr. 421]) and “`to 7 prevent tort claims from expiring before they are discovered ....'” (Lambert v. Commonwealth 8 Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1079 [282 Cal.Rptr. 445, 811 P.2d 737].). Hence, 9 these doctrines support the denial of the subject demur. 10 B. The causes of action for fraud, conversion, unfair business practices, accounting, promissory and equitable estoppel in the Cross-Complaint are not barred by § 340.6. 11 The elements of a cause of action for fraud (not contested by XD) are as following: (1) 12 misrepresentation, including a misrepresentation of law, if such misrepresentation includes by 13 implication a misrepresentation of fact; (2) knowledge that the representation is false; (3) intent to 14 defraud; (4) justifiable reliance; and (5) resulting damage (Civ. Code, §§ 1709, 1710; Lacher v. 15 Superior Court (1991) 230 Cal. App.3d 1038, 1046, Bobak v. Mackey (1951) 107 Cal.App.2d 55. 16 Here, Dr. Benson has alleged fraud [in part re continuing payments inclusive of retainers 17 on experts for “millions,” failure to account and return deposits, failure to return files and 18 property, “no charge” for future services yet billed over $51,000 with continuing collection 19 actions for same, etc.]. Generally, courts have applied §338(d) to actions for fraud against 20 attorneys. (6) This statute of limitations for fraud is three years. (§338(d).). This section also 21 codifies the above delayed discovery rule, providing that a cause of action for fraud “`is not to be 22 deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the 23 fraud or mistake.'” (Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35 [3 Cal.Rptr.3d 330]. The 24 fraudulent concealment doctrine (also referred to as equitable estoppel -see below) will also toll 25 the limitations under §338(d). “[T]he ground of relief is that the defendant, having by fraud or 26 deceit concealed material facts and by misrepresentations hindered the plaintiff from bringing an 27 action within the statutory period, is estopped from taking advantage of his own wrong.” (Pashley 28 -5- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 231 [153 P.2d 325].) To take advantage of this 2 doctrine “`the plaintiff must show ... the substantive elements of fraud ... and ... an excuse for late 3 discovery of the facts.'” (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal. App. 4 4th 884, 890 [117 Cal.Rptr.2d 331].). The duty to disclose may be established where there is a 5 confidential relationship between the parties, defendant has made a representation which was 6 likely to mislead due to the nondisclosure, there is active concealment of undisclosed matters, or 7 one party has sole knowledge of or access to material facts and knows such facts are not known to 8 or discoverable by the other party. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 346-347 [134 9 Cal.Rptr. 375, 556 P.2d 737].) Fraud is the not the only claim excepted from 340.6. Section 10 340.6(a), governs any “action against an attorney for a wrongful act or omission, other than for 11 actual fraud, arising in the performance of professional services ....” While the statute plainly 12 applies to malpractice claims, it also governs “claims whose merits necessarily depend on proof 13 that an attorney violated a professional obligation in the course of providing professional services. 14 In this context, a `professional obligation' is an obligation that an attorney has by virtue of being 15 an attorney, such as fiduciary obligations, the obligation to perform competently, the obligation to 16 perform the services contemplated in a legal services contract into which an attorney has entered, 17 and the obligations embodied in the State Bar Rules of Professional Conduct.” (Lee v. 18 Hanley (2015) 61 Cal.4th 1225, 1236-1237 [191 Cal.Rptr.3d 536, 354 P.3d 334] (Lee).) Put 19 another way, since the “attorney-client relationship often requires attorneys to provide nonlegal 20 professional services such as accounting, bookkeeping, and holding property in trust,” the 21 statute's reach extends beyond legal malpractice to the performance of services that do not require 22 a law license. (Id. at p. 1237.) On the other hand, “[m]isconduct does not ‘aris[e] in’ the 23 performance of professional services for purposes of section 340.6(a) merely because it occurs 24 during the period of legal representation or because the representation brought the parties together 25 and thus provided the attorney the opportunity to engage in the misconduct.” (Lee, supra, 61 26 Cal.4th at p. 1238.) Thus, the statute “does not bar a claim arising from an attorney's performance 27 of services that are not ‘professional services,’ meaning ‘services performed by an attorney which 28 can be judged against the skill, prudence and diligence commonly possessed by other attorneys.’ -6- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 [Citation.]” (Id. at p. 1237.). The ultimate “question is not simply whether a claim alleges 2 misconduct that entails the violation of a professional obligation. Rather, the question is 3 whether the claim, in order to succeed, necessarily depends on proof that an attorney 4 violated a professional obligation as opposed to some generally applicable nonprofessional 5 obligation.” (Id. at p. 1238, emphasis added). Hence, Dr. Benson’s claims are not barred under 6 the claimed linchpin of 340.6. 7 C. The causes of action for conversion, unfair business/competition practices, and equitable /promissory estoppel are not barred by CCP § 340.6. 8 9 Conversion. “Conversion is the wrongful exercise of dominion over the property of 10 another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to 11 possession of the property; (2) the defendant's conversion by a wrongful act or disposition of 12 property rights; and (3) damages.” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 13 208 [166 Cal.Rptr.3d 877].) The analysis with respect to conversion by the High Court in Lee 14 applies here in Dr. Benson’s claim for conversion as following: 15 “Lee's complaint may be construed to allege that Hanley is liable for conversion for simply refusing to return an identifiable sum of Lee's money. Thus, at least one 16 of Lee's claims does not necessarily depend on proof that Hanley violated a professional obligation in the course of providing professional services. Of course, 17 Lee's allegations, if true, may also establish that Hanley has violated certain professional obligations, such as the duty to refund unearned fees at the 18 termination of the representation (Rules Prof. Conduct, rule 3-700(D)(2)), just as an allegation of garden-variety theft, if true, may also establish a violation of an 19 attorney's duty to act with loyalty and good faith toward a client. But because Lee's claim of conversion does not necessarily depend on proof that Hanley 20 violated a professional obligation, her suit is not barred by section 340.6(a). 21 (Lee. v. Hanley, at p. 1240, emphasis added.). Here, the 3-year limitations period is met 22 even if one considers Exh. “A” to N. Jurkowitz’ declaration (letter of January 31, 2018 23 from attorney W. Kruse as date of discovery of the actions – even though not all client 24 files and property [para. 36 of XC] have been turned over by XDs to know what other acts 25 have occurred - and objection is taken to the declaration of N. Jurkowitz as not proper for 26 use in a demur, see separately filed objection). 27 Unfair Competition and Business Practices. Similarly, the same analysis applies to 28 Dr. Benson’s 4th claim for UCL (under Calif. B&P § 17208, 4-year limitation). The Calif. -7- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 Supreme Court in 2013 held, “(1) the text and legislative history of the UCL leave UCL 2 claims as subject to the common law rules of accrual as any other cause of action, and (2) 3 continuous accrual principles prevent [plaintiff’s] complaint from being dismissed at the 4 demurrer stage on statute of limitations grounds.” (Aryeh v. Canon Business Solutions, 5 Inc. (2013) 55 Cal.4th 1185, 1189, 151 Cal.Rptr.3d 827.). Hence, the UBP claims are 6 timely as the unfair business practices alleged in para. 77–82 [billing and administrative 7 fee practices, fraud in billing after “no-charge” promises, conversion of refunds, etc.] 8 involve generally applicable nonprofessional obligations. 9 Equitable / Promissory Estoppel. “[E]quitable estoppel is not a punitive notion, but rather 10 a remedial judicial doctrine employed to insure fairness, prevent injustice, and do equity. It stems 11 from the venerable judicial prerogative to redress unfairness in the application of otherwise 12 inflexible legal dogma, based on sound public policy and equity. [Citation.]” (Spray, Gould & 13 Bowers v. Associated Internal Ins. Co. (1999) 71 Cal. App.4th 1260, 1270, 84 Cal.Rptr.2d 552.). 14 “‘[E]stoppel is applicable where the conduct of one side has induced the other to take such a 15 position that it would be injured if the first should be permitted to repudiate its acts. [Citations.]’ 16 [¶] 'Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to 17 be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must 18 so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the 19 party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon 20 the conduct to his injury.' [Citation.] [¶] The doctrine of estoppel has been codified in Evidence 21 Code section 623: `Whenever a party has, by his own statement or conduct, intentionally and 22 deliberately led another to believe a particular thing true and to act upon such belief, he is not, in 23 any litigation arising out of such statement or conduct, permitted to contradict it.'” (DRG/Beverly 24 Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59, 35 Cal. 25 Rptr.2d 515.) Here, FLG was Dr. Benson’s attorneys and they continued to advise Dr. Benson 26 with respect to among other things [concealing conversion of refund monies, failure to return 27 property and files, no “charge” for future services, promises to secure large retainers for 28 “required” experts in order to obtain “millions.” XDs intended that their advice and -8- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 representations be relied upon, Dr. Benson was ignorant of the true facts, and Dr. Benson relied 2 upon the advice of XD to his detriment. Hence, XDs cannot justly claim that the statute of 3 limitations has expired since to do so would be unacceptable as it would permit XDs to hide 4 behind their own tortious conduct and deceit -- they are estoppel re this accrued cause of action. 5 D. The breach of fiduciary duty, contract and accounting are not barred per 340.6. 6 “The relation between attorney and client is a fiduciary relation of the very highest 7 character, and binds the attorney to most conscientious fidelity — uberrima fides.” (Cox v. 8 Delmas (1893) 99 Cal. 104 123; Barbara A. v. John G. (1983) 145 Cal. App.3d 369, 383 [193 9 Cal. Rptr. 422].) Here, the first cause of action for breach of fiduciary duty has its relevant 10 allegations at para. 38-59 and the second for breach of contract at para. 60-65 (both incorporating 11 13-37 as general background facts). The fiduciary relationship commenced and the contract was 12 dated January 23, 2015. The last payment to XDs made by Dr. Benson occurred on May 2, 2017 13 thus XDs cause of action for breach of contract has a 4-year statute hence estoppel should allow 14 the same for Dr. Benson. Similarly, §340.6(b) provides that in an action based upon an 15 instrument in writing, the effective date of which depends upon some act or event of the future, 16 the period of limitations provided for by this section shall commence to run upon the occurrence 17 of that act or event. Accounting is proper as to support such and other causes of action herein. 18 E. Leave to amend should be granted to Dr. Benson with respect to his cross-complaint. 19 Leave to amend is appropriate here (see Schultz v. Harney (1994) 27 Cal. App. 4th 1611, 20 1622-1623). It is axiomatic that a demurrer to a complaint should not be sustained without leave 21 to amend if there is a reasonable possibility that the defects can be cured by amendment, or that, 22 liberally construed, the pleading can state a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 23 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58]; Careau & Co. v. Security Pacific Business Credit, 24 Inc. (1989) 222 Cal. App.3d 1371, 1387 [272 Cal. Rptr. 387].) Likewise, as between the XDs, 25 the causes of action and issues addressed to each XD may create factual agency issues yet these 26 are not raised in the demurrer. To the extent this Court believes the XC should clarify or specify 27 such allegations as per this opposition leave to amend is respectfully requested and proper. 28 ////// -9- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 III. CONCLUSION AND PRAYER 2 WHEREFORE, DOUG BENSON. M.D., prays based upon the above legal premises and 3 logic, that this Court respectfully enters an order denying the relief request by Cross-Defendants, 4 and each of them, be denied, that the answer to the cross-complaint be filed forthwith proceed; 5 the he be granted leave to amend his cross-complaint; and for such other, further, and equitable 6 relief as the Court deems just and proper. 7 Dated: January 25, 2021 KRUSE LAW CORPORATION 8 9 10 By:_____________________________________ 11 Dr. William E. Kruse 12 Attorney for Defendant and Cross-Complainant, Doug Benson, M.D. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT 1 DECLARATION OF SERVICE 2 I am a citizen of the United States and am employed in Sacramento County, California. I am over the age of eighteen (18) years and not a party to the within above-entitled action. My 3 businesses address is PO Box 1746, Rancho Cordova, California 95741-1746. On this date I served a true copy of the following document(s) on each person named immediately below this 4 declaration: 5 OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT, MEMORANDUM OF POINTS AND 6 AUTHORITIES IN SUPPORT HEREOF. 7 [xx] By First-Class Mail, in accordance with Code of Civil Procedure §1013(a), by placing said copy(ies) enclosed in a sealed envelope in a designated area for outgoing 8 mail, addressed as shown below. I am readily familiar with this firm's practice for collecting and processing correspondence for mailing. On the same day that 9 correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with 10 postage thereon fully prepaid. [ ] via certified mail, return receipt requested. 11 Addressed to: 12 (1) Joshua P. Friedman, Esq. (Attorney for Cross-Defendants/Plaintiff) Joshua P. Friedman and Associates, Inc. 13 23679 Calabasas Rd #377 Calabasas, CA 91302 14 [ ] By Facsimile Transmission in accordance with Code of Civil Procedure §1013(e), to the 15 following party(ies) at the facsimile number(s) indicated above. [ ] By Federal Express in accordance with Code of Civil Procedure §1013(c), by causing said 16 document(s) to be placed in a sealed envelope designated by Federal Express with delivery fees paid or provided for, addressed in the manner set forth immediately 17 below this declaration, and then [ ] depositing said envelope in a box or other facility regularly maintained by 18 Federal Express, an express service carrier. [ ] delivering said envelope to an authorized courier or driver authorized by 19 Federal Express, an express service carrier, to receive documents. [ ] By Personal Delivery in accordance with Code of Civil Procedure §1011 to the person(s) 20 and at the address(es) as follows. 21 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on January 25, 2021, at Rancho Cordova, California. 22 23 ___________________________ TAMMY ROSS 24 25 26 27 28 -11- OPPOSITION OF DOUG BENSON, M.D. TO THE DEMURRER TO THE CROSS-COMPLAINT