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6 e “en
NELSON H. MOSHER, JR. FILED
KF
ATTORNEY AT LAW SB #57853
1 5600 Washington Avenue Suite F ALAMEDA COUNTY gh
NY
an Lorenzo, CA 94580
Tel: (510) 278-8854 APR 3 0 2001
WY
Fax: (510)278-0757 CER ESE AIBERIOR COURT
FP
Attorney for Plaintiff By ‘ve a ee
John P. Derdivanis
A
SUMMONS ISSUED
DB
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
IN
HAYWARD HALL OF JUSTICE
fe
eo
John P. Derdivanis, D.D.S.
Plaintiff CaseNo. Q 1 = 0 0 9 6 4 2 “
vs Complaint for Damages for Fraud and Deceit
And Other causes of action
M. Irene Gomez A Limited Civil Case
ee
Does | to 5 Inclusive
Defendants/
Plaintiff alleges:
FIRST CAUSE OF ACTION
1. Defendant M. Irene Gomez is, and at all times herein mentioned was, a resident of Union City,
Alameda County, California.
2. Plaintiff is ignorant of the true names and capacities of defendants sued herein as Does 1 to 5
NO
inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend this
I
NO
complaint to allege their true names and capacities when ascertained. Plaintiff is informed and
[OE
believes and thereon alleges that each of the fictitiously named defendants is responsible in some
manner for the occurrences herein alleged, and that Plaintiffs damages as herein alleged were
N
proximately caused by their conduct.
3. This action is filed in the herein branch can court because the conduct alleged herein was done
in the herein branch and court.
WN
NO
COMPLAINT
4. This action is not subject to the provisions of Civil Code section 1812.10 and or Civil Code
section 2984.4.
NY
5. Acopy of the demand letter sent pursuant to Code of Civil Procedure section 1033 is attached
WD
hereto as Exhibit 1
BP
6. Defendant M. Irene Gomez was the employed by Plaintiff John P. Derdivanis as business
OH
manager from September 19, 1999 until October 31, 2000. As Plaintiff's business manager,
ND
defendant had authority to order merchandise on Plaintiff's account and use Plaintiff's credit card
NIN
for the benefit of Plaintiff's business.
YF
7. By virtue of defendant’s employment by plaintiff, defendant owed to plaintiff a fiduciary duty
o
and by virtue of plaintiff's having place confidence in the fidelity and integrity of defendant in
Re
entrusting defendant with the authority to order merchandise and use Plaintiffs credit card for
plaintiff's behalf, a confidential relationship existed at all times herein mentioned between plaintiff
eR
and defendant.
8. Despite having voluntarily accepted the trust and confidence reposed in her by Plaintiff with
regard to plaintiff's above-described authority to order merchandise and use Plaintiff's credit card,
and in violation of this relationship of trust and confidence, defendant abused the trust and
confidence of Plaintiff Defendant charged the following against Plaintiffs credit cards: Dell Ware
me
Laptop Computer, software Office 2000, a BJC 2110 Color Bubble-Jet Printer, CD Rom for a
Canon BJC 2110, at total cost of $,3952.51; Airline Ticket to Phoenix, Arizona in sum of $ 618.00;
Airline Ticket to Chicago Illinois in sum of $108.22; Earthlink Internet Service in sum of $359.40;
RO
enrolled in class through National Seminars Group in the sum of $308.00; ordered merchandise
NO
from ABC Distributing for her own use rather than for the authorized purposes connected with
KN
Plaintiffs business in the sum of $45.64; and, used Plaintiff's credit card to purchase merchandise
NHN
from Target Stores for her own use rather than for the authorized purposes connected with Plaintiffs
HN
business in the sum of $ 495.73. When Defendant left Plaintiffs employment she took the above-
NO
described items.
NO
WN
NO
COMPLAINT
9. Defendant did the acts herein alleged with the intent to deceive and defraud Plaintiff and
defendant, except for the computer equipment which Defendant took when she left Plaintiff
NH
employment, Defendant purchased the other items without Plaintiff knowledge or consent and
Ww
concealed the fact by taking the invoices.
FSP
10. Plaintiffin fact placed confidence and reliance in defendant until after October 31, 2000 when,
A
attempting to find why his bills were unpaid and shortage of funds , plaintiff discovered the true facts
DBD
concerning the purchases and charges made for defendant’s personal use, as alleged above. Plaintiff
SN
reasonably relied on the defendant in her hired her as his office manager to handle all of Plaintiff's
ee
financial affairs.
o
11. As a result of the fraud of defendant as herein alleged, Plaintiff has been damaged in the sum
OS
of $6,195.50.
ES
KF
SPO
12. The aforementioned conduct of defendant was an intentional misrepresentation, deceit or
YN
FOO
concealment of a material fact know to the defendant with the intention on the part of the defendant
WO
of thereby depriving plaintiff of property or legal rights or otherwise causing injury, and was
FP
FEF
despicable conduct that subjected plaintiff to a cruel and unjust hardship in conscious disregard of
KF
A
plaintiff's rights, so as to justify an award of exemplary and punitive damages in the sum of
KB
HS
$5,000.00. .
NI
KF
WHEREFORE, Plaintiff prays judgment as follows:
BH
=
SECOND CAUSE OF ACTION
BO
FF
1. Plaintiffrefers to and realleges paragraphs 1,2,3,4,5,and 6 of the First Cause of Action and makes
ODP
NO
them a part hereof by reference.
KH
NO
2. Atall times herein mentioned, and in particular on or about October 1, 2000 Plaintiff was, and
NO
NY
still is the owner, and was and still is entitled to the possession of the following personal property
WO
ND
Dell Ware Laptop Computer, software Office 2000, a BJC 2110 Color Bubble-Jet Printer, CD Rom
FBP
NBO
fora Canon BJC 2110, Airline Ticket to Phoenix, Arizona, Airline Ticket to Chicago Illinois, Signed
HA
NO
up with Earthlink for Internet service, enrolled in class through National Seminars Group, ordered
NO
NN
NO
oa
NO
COMPLAINT
merchandise from ABC Distributing for her own use rather than for the authorized purposes
connected with Plaintiffs business, used Plaintiffs credit card to purchase-merchandise from Target
NH
Stores for her own use rather than for the authorized purposes connected with Plaintiffs business.
WY
3. On or about October 30, 2000 and at San Lorenzo, California the above-mentioned property had
Ff
a value of $6,195.50 ; oe
vA
4, On or about October 30, 2000 Defendant M. Irene Gomez took the above-mentioned merchandise
DH
from Plaintiff's possession and converted the same to her own use..
N
5. Onorabout January 16,2001 Plaintiff made a written demand for the immediate return of the
Oo
above-mentioned property but defendant failed and refused and continues to fail and refuse to return
Oo
the property to Plaintiff. A copy of Plaintiff's written demand for return of the property is attached
OS
le
hereto as Exhibit 2 and made a part hereof.
ES
YF
6. As a proximate result of Defendant’s conversion, Plaintiff has incurred credit card obligations
SES
NY
and lost of the property purchased on his credit card which are the natural, reasonable, and
FEF
WY
proximate result of the conversions, all to plaintiff's damage in the sum of $6,195.50.
FP
FSF
7. The aforementioned acts of defendant were willful, wanton, malicious and oppressive, and were
PF
A
undertaken with the intent to defraud, and justify the awarding of exemplary and punitive damages
HD
FF
in the sum of $5,000.00.
FF
FN
WHEREFORE, Plaintiff prays judgment as follows:
KF
THIRD CAUSE OF ACTION
DO
KR
1. Plaintiffrefers to and realleges paragraphs 1,2,3,4,5,and 6 of the First Cause of Action and makes
BD
NO
them a part hereof by reference. -
FY
N
2. On or about May 1, 2000 Plaintiff planned a Hawaiian vacation trip for his staff. Plaintiff agreed
NYO
NO
to pay the cost for any employee who went on the trip. If the employee wanted to bring family
WO
NY
members or friends on the Hawaiian vacation trip , the employee would have to pay the cost for any
BP
NY
family member or friend who went on the trip.
UN
WN
3. Defendant brought 3 family members and/or friends on the Hawaiian Vacation
AO
NO
NIN
wpPO
oo
NO
COMPLAINT
4. Plaintiff paid the sum of $ 3,929.84 for Defendants 3 family members and/or friends to attend the
Hawaiian Vacation
NO
5. Defendant has refused and continues to refuse to pay $ 3,929.84 which Plaintiff paid on her
WY
behalf despite demands therefore. :
FSF
6. Defendant owes Plaintiff the sum of $3,929.84 plus interest at the rate of 10 percent per annum
A
from October 1, 2000.
NHN
WHEREFORE, Plaintiff prays judgment as follows:
NY
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1. For general damages in the sum of $6,195.50 on the First Cause of Action and/or Second
Oo
Cause of Action
CO
2. For punitive damages in an amount appropriate to punish defendant and deter others from
SE
KF
engaging in similar misconduct in the sum of $5,000.00 on the First Cause of Action and/or Second
RFP
NY
Cause of Action;
PF
WO
3. For damages of $ $3,929.84 plus interest at the rate of 10percent per annum from October
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1, 2000 to the date of judgment on the Third Cause of Action;
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4. For reasonable attorney’s fees pursuant to Civil Code section 1717.5 on the Third Cause
ND
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of Action;
HANA
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5. For costs of suit incurred herein; and
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6. For sugh other and further relief as the court may deem proper.
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Dated: Le ZOD /
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HO
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KH
WN
NY
NO
NELSON H. MOSHER, JR. V4
Attorney for Plaintiff J ohn P. Derdivanis
WO
NYO
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NO
VERIFICATION _
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I, John P. Derdivanis, am the Plaintiff in the above entitle action. I have read the foregoing
HO
NO
complaint and know the contents thereof. The same is true of my own knowledge except as to those
tN
NO
eo
NO
COMPLAINT
matters which are therein stated on information and belief, and as to those matters, I believe it to be
kK
true.
NO
I declare under penalty of perjury under the laws of the State of California that the aforesaid
WD
is true and correct and that this declaration was executed on (Mprate L ¢, 400) at San
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Lorenzo, California.
AD
DBD
OA. Abahani
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OHN P. DERDIVANIS, D.D.S
PLAINTIFF
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COMPLAINT
NELSON H. MOSHER, JR.
ATTORNEY AT LAW
15600 WASHINGTON AVENUE, SUITE F
SAN LORENZO, CA 94580
VOICE: (510) 278-8854
FAX: (510) 278-0757
November 15, 2000
M. Irene Gomez
3303 San Lucas Way
Union City, CA 94587
Re: John Derdivanis, D.D.S.
Dear Ms. Gomez: a
Dr. Derdivanis asked me to write you to return the following property that you either had in
your possession or took when you left his employment:
Lap top computer
Cellular telephone
Pager -
any and all files, records or documents -
and the $350.00 cash
You need to return the above property to my office by November 20, 2000. Ifyou have not
returned the property, then Dr Derdivanis will have to take whatever legal action necessary to
recover his property.
Your cooperation in this matter will be appreciated.
Very truly yours,
a?
Dob Mle Ta
NELSON H. MOSHER JOR.
ce: Dr Derdivanis
EXHIBIT 1
January 16, 2001
M. Irene Gomez
3303 San Luces Way
Union City, Ca 94587
Dear M. Gomez,
These are the list of items that you have not returned to the office.
1) The Dell Wate Laptop, in which you’ve stated was stolen from your house, no police report was filed.
2) Software: Office 2000, Printer CD Rom for the Canon BJC-2110
Also, I have charges to my credit cards that I did not incur:
A) Hawaii Convention- Happy Tours 7/14/00 3,929.84
B) Phoenix Trip- Ametican Airlines 3/15/00 618.00 _
©) Chicago, Il Trip- United Airlines 12/30/99 108.22
D) Dell Ware Laptop-Catalog Orders 5/9-5/10/00 3,952.51 —
E) Earthlink Account Website? 29.95 x 12 = 359.40 _
F) ABC Distributing (Insufficient Funds) 9/12/00 45.64 _—
G) National Seminars Group 356.04 ©
The Shane Co.- Fashion Pin Appraisal 162.38
Total - 9,532.03
I recognize the fact that the Happy Tours is not all your bill, I need to know what you owe my
office, as far as the guest that you brought to Hawaii. ; _
Sincerely,
John P. Detdivanis, D.D.S.
Owner
JPD/km
ce: Mr. Nelson Mosher,Jr. Attorney
EXHIBIT 2
15600 WASHINGTON AVE, STE E
SAN LORENZO, CA 94580
Preview
6 e “en NELSON H. MOSHER, JR. FILED KF ATTORNEY AT LAW SB #57853 1 5600 Washington Avenue Suite F ALAMEDA COUNTY gh NY an Lorenzo, CA 94580 Tel: (510) 278-8854 APR 3 0 2001 WY Fax: (510)278-0757 CER ESE AIBERIOR COURT FP Attorney for Plaintiff By ‘ve a ee John P. Derdivanis A SUMMONS ISSUED DB SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA IN HAYWARD HALL OF JUSTICE fe eo John P. Derdivanis, D.D.S. Plaintiff CaseNo. Q 1 = 0 0 9 6 4 2 “ vs Complaint for Damages for Fraud and Deceit And Other causes of action M. Irene Gomez A Limited Civil Case ee Does | to 5 Inclusive Defendants/ Plaintiff alleges: FIRST CAUSE OF ACTION 1. Defendant M. Irene Gomez is, and at all times herein mentioned was, a resident of Union City, Alameda County, California. 2. Plaintiff is ignorant of the true names and capacities of defendants sued herein as Does 1 to 5 NO inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend this I NO complaint to allege their true names and capacities when ascertained. Plaintiff is informed and [OE believes and thereon alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiffs damages as herein alleged were N proximately caused by their conduct. 3. This action is filed in the herein branch can court because the conduct alleged herein was done in the herein branch and court. WN NO COMPLAINT 4. This action is not subject to the provisions of Civil Code section 1812.10 and or Civil Code section 2984.4. NY 5. Acopy of the demand letter sent pursuant to Code of Civil Procedure section 1033 is attached WD hereto as Exhibit 1 BP 6. Defendant M. Irene Gomez was the employed by Plaintiff John P. Derdivanis as business OH manager from September 19, 1999 until October 31, 2000. As Plaintiff's business manager, ND defendant had authority to order merchandise on Plaintiff's account and use Plaintiff's credit card NIN for the benefit of Plaintiff's business. YF 7. By virtue of defendant’s employment by plaintiff, defendant owed to plaintiff a fiduciary duty o and by virtue of plaintiff's having place confidence in the fidelity and integrity of defendant in Re entrusting defendant with the authority to order merchandise and use Plaintiffs credit card for plaintiff's behalf, a confidential relationship existed at all times herein mentioned between plaintiff eR and defendant. 8. Despite having voluntarily accepted the trust and confidence reposed in her by Plaintiff with regard to plaintiff's above-described authority to order merchandise and use Plaintiff's credit card, and in violation of this relationship of trust and confidence, defendant abused the trust and confidence of Plaintiff Defendant charged the following against Plaintiffs credit cards: Dell Ware me Laptop Computer, software Office 2000, a BJC 2110 Color Bubble-Jet Printer, CD Rom for a Canon BJC 2110, at total cost of $,3952.51; Airline Ticket to Phoenix, Arizona in sum of $ 618.00; Airline Ticket to Chicago Illinois in sum of $108.22; Earthlink Internet Service in sum of $359.40; RO enrolled in class through National Seminars Group in the sum of $308.00; ordered merchandise NO from ABC Distributing for her own use rather than for the authorized purposes connected with KN Plaintiffs business in the sum of $45.64; and, used Plaintiff's credit card to purchase merchandise NHN from Target Stores for her own use rather than for the authorized purposes connected with Plaintiffs HN business in the sum of $ 495.73. When Defendant left Plaintiffs employment she took the above- NO described items. NO WN NO COMPLAINT 9. Defendant did the acts herein alleged with the intent to deceive and defraud Plaintiff and defendant, except for the computer equipment which Defendant took when she left Plaintiff NH employment, Defendant purchased the other items without Plaintiff knowledge or consent and Ww concealed the fact by taking the invoices. FSP 10. Plaintiffin fact placed confidence and reliance in defendant until after October 31, 2000 when, A attempting to find why his bills were unpaid and shortage of funds , plaintiff discovered the true facts DBD concerning the purchases and charges made for defendant’s personal use, as alleged above. Plaintiff SN reasonably relied on the defendant in her hired her as his office manager to handle all of Plaintiff's ee financial affairs. o 11. As a result of the fraud of defendant as herein alleged, Plaintiff has been damaged in the sum OS of $6,195.50. ES KF SPO 12. The aforementioned conduct of defendant was an intentional misrepresentation, deceit or YN FOO concealment of a material fact know to the defendant with the intention on the part of the defendant WO of thereby depriving plaintiff of property or legal rights or otherwise causing injury, and was FP FEF despicable conduct that subjected plaintiff to a cruel and unjust hardship in conscious disregard of KF A plaintiff's rights, so as to justify an award of exemplary and punitive damages in the sum of KB HS $5,000.00. . NI KF WHEREFORE, Plaintiff prays judgment as follows: BH = SECOND CAUSE OF ACTION BO FF 1. Plaintiffrefers to and realleges paragraphs 1,2,3,4,5,and 6 of the First Cause of Action and makes ODP NO them a part hereof by reference. KH NO 2. Atall times herein mentioned, and in particular on or about October 1, 2000 Plaintiff was, and NO NY still is the owner, and was and still is entitled to the possession of the following personal property WO ND Dell Ware Laptop Computer, software Office 2000, a BJC 2110 Color Bubble-Jet Printer, CD Rom FBP NBO fora Canon BJC 2110, Airline Ticket to Phoenix, Arizona, Airline Ticket to Chicago Illinois, Signed HA NO up with Earthlink for Internet service, enrolled in class through National Seminars Group, ordered NO NN NO oa NO COMPLAINT merchandise from ABC Distributing for her own use rather than for the authorized purposes connected with Plaintiffs business, used Plaintiffs credit card to purchase-merchandise from Target NH Stores for her own use rather than for the authorized purposes connected with Plaintiffs business. WY 3. On or about October 30, 2000 and at San Lorenzo, California the above-mentioned property had Ff a value of $6,195.50 ; oe vA 4, On or about October 30, 2000 Defendant M. Irene Gomez took the above-mentioned merchandise DH from Plaintiff's possession and converted the same to her own use.. N 5. Onorabout January 16,2001 Plaintiff made a written demand for the immediate return of the Oo above-mentioned property but defendant failed and refused and continues to fail and refuse to return Oo the property to Plaintiff. A copy of Plaintiff's written demand for return of the property is attached OS le hereto as Exhibit 2 and made a part hereof. ES YF 6. As a proximate result of Defendant’s conversion, Plaintiff has incurred credit card obligations SES NY and lost of the property purchased on his credit card which are the natural, reasonable, and FEF WY proximate result of the conversions, all to plaintiff's damage in the sum of $6,195.50. FP FSF 7. The aforementioned acts of defendant were willful, wanton, malicious and oppressive, and were PF A undertaken with the intent to defraud, and justify the awarding of exemplary and punitive damages HD FF in the sum of $5,000.00. FF FN WHEREFORE, Plaintiff prays judgment as follows: KF THIRD CAUSE OF ACTION DO KR 1. Plaintiffrefers to and realleges paragraphs 1,2,3,4,5,and 6 of the First Cause of Action and makes BD NO them a part hereof by reference. - FY N 2. On or about May 1, 2000 Plaintiff planned a Hawaiian vacation trip for his staff. Plaintiff agreed NYO NO to pay the cost for any employee who went on the trip. If the employee wanted to bring family WO NY members or friends on the Hawaiian vacation trip , the employee would have to pay the cost for any BP NY family member or friend who went on the trip. UN WN 3. Defendant brought 3 family members and/or friends on the Hawaiian Vacation AO NO NIN wpPO oo NO COMPLAINT 4. Plaintiff paid the sum of $ 3,929.84 for Defendants 3 family members and/or friends to attend the Hawaiian Vacation NO 5. Defendant has refused and continues to refuse to pay $ 3,929.84 which Plaintiff paid on her WY behalf despite demands therefore. : FSF 6. Defendant owes Plaintiff the sum of $3,929.84 plus interest at the rate of 10 percent per annum A from October 1, 2000. NHN WHEREFORE, Plaintiff prays judgment as follows: NY fe 1. For general damages in the sum of $6,195.50 on the First Cause of Action and/or Second Oo Cause of Action CO 2. For punitive damages in an amount appropriate to punish defendant and deter others from SE KF engaging in similar misconduct in the sum of $5,000.00 on the First Cause of Action and/or Second RFP NY Cause of Action; PF WO 3. For damages of $ $3,929.84 plus interest at the rate of 10percent per annum from October FP Se 1, 2000 to the date of judgment on the Third Cause of Action; UH Fe 4. For reasonable attorney’s fees pursuant to Civil Code section 1717.5 on the Third Cause ND FF of Action; HANA KH 5. For costs of suit incurred herein; and KR 6. For sugh other and further relief as the court may deem proper. HO § - Dated: Le ZOD / CO HO QW hae KH WN NY NO NELSON H. MOSHER, JR. V4 Attorney for Plaintiff J ohn P. Derdivanis WO NYO BP NO VERIFICATION _ UR HNO I, John P. Derdivanis, am the Plaintiff in the above entitle action. I have read the foregoing HO NO complaint and know the contents thereof. The same is true of my own knowledge except as to those tN NO eo NO COMPLAINT matters which are therein stated on information and belief, and as to those matters, I believe it to be kK true. NO I declare under penalty of perjury under the laws of the State of California that the aforesaid WD is true and correct and that this declaration was executed on (Mprate L ¢, 400) at San BP Lorenzo, California. AD DBD OA. Abahani NN OHN P. DERDIVANIS, D.D.S PLAINTIFF Fe oO OO KK | Se HPO FEF WHO FSP SF A HD HB HN =| FB HH OO KR ODO NO K§ HN NYO NY WD HNO FP NO OH HO DH NO sn HO eo pmo COMPLAINT NELSON H. MOSHER, JR. ATTORNEY AT LAW 15600 WASHINGTON AVENUE, SUITE F SAN LORENZO, CA 94580 VOICE: (510) 278-8854 FAX: (510) 278-0757 November 15, 2000 M. Irene Gomez 3303 San Lucas Way Union City, CA 94587 Re: John Derdivanis, D.D.S. Dear Ms. Gomez: a Dr. Derdivanis asked me to write you to return the following property that you either had in your possession or took when you left his employment: Lap top computer Cellular telephone Pager - any and all files, records or documents - and the $350.00 cash You need to return the above property to my office by November 20, 2000. Ifyou have not returned the property, then Dr Derdivanis will have to take whatever legal action necessary to recover his property. Your cooperation in this matter will be appreciated. Very truly yours, a? Dob Mle Ta NELSON H. MOSHER JOR. ce: Dr Derdivanis EXHIBIT 1 January 16, 2001 M. Irene Gomez 3303 San Luces Way Union City, Ca 94587 Dear M. Gomez, These are the list of items that you have not returned to the office. 1) The Dell Wate Laptop, in which you’ve stated was stolen from your house, no police report was filed. 2) Software: Office 2000, Printer CD Rom for the Canon BJC-2110 Also, I have charges to my credit cards that I did not incur: A) Hawaii Convention- Happy Tours 7/14/00 3,929.84 B) Phoenix Trip- Ametican Airlines 3/15/00 618.00 _ ©) Chicago, Il Trip- United Airlines 12/30/99 108.22 D) Dell Ware Laptop-Catalog Orders 5/9-5/10/00 3,952.51 — E) Earthlink Account Website? 29.95 x 12 = 359.40 _ F) ABC Distributing (Insufficient Funds) 9/12/00 45.64 _— G) National Seminars Group 356.04 © The Shane Co.- Fashion Pin Appraisal 162.38 Total - 9,532.03 I recognize the fact that the Happy Tours is not all your bill, I need to know what you owe my office, as far as the guest that you brought to Hawaii. ; _ Sincerely, John P. Detdivanis, D.D.S. Owner JPD/km ce: Mr. Nelson Mosher,Jr. Attorney EXHIBIT 2 15600 WASHINGTON AVE, STE E SAN LORENZO, CA 94580