Demurrer in Goldman VS Kushwood Manufacturing, Inc.| Trellis.Law

On February 18, 2003 a Motion,Ex Parte was filed involving a dispute between Kenneth Goldman, and Kushwood Manufacturing, Inc., for Unlimited Civil in the District Court of Alameda County.

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| ERIN |
JONES, MAHONEY,
Shia BRAYTON & SOLL LLP
. BELOW FOR FILING wr Vareen,

ATTORNEYS AT LAW
1SO WEST FIRST STREET, SUITE 280
P. O. Box 940
CLAREMONT, CALIFORNIA 91711
(909) 399-9977
FAX (909) 399-S959

RICHARD A. SOLL, SBN 67610
~
FACTURING?—
PAUL M. MAHONEY, SBN 43531 Fe eee
- e
O
Attorneys fodefendants KUSHWOOD MANUF
INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA

10
KENNETH GOLDMAN No. RG 03083213
11
Plaintiff, [Assigned to Hon. Ronald Sabraw -
12 V. Dept. 22]
13 KUSHWOOD MANUFACTURING, INC.
and DOES 1 through 100, inclusive, DATE: August 26, 2003
14 TIME: 11:00 a.m.
15 Defendants. DEPT.: 22

16 NOTICE BY DEFENDANT
17 KUSHWOOD
MANUFACTURING, INC. OF
18 HEARING ON DEMURRER TO
19
PLAINTIFF’S FIRST AMENDED
COMPLAINT; GENERAL AND
20 SPECIAL DEMURRERS;
MEMORANDUM OF POINTS
21
AND AUTHORITIES IN
22 SUPPORT THEREOF
23

26 TO PLAINTIFF KENNETH GOLDMAN AND TO HIS COUNSEL OF

27
RECORD:
28

1.
DEMURRER TO FIRST AMENDED COMPLAINT
@ @
NOTICE IS HEREBY GIVEN that on August 26, 2003 at 11:00 a.m. or as soon

thereafter as the matter may be heard in Dept. 22 of the above-entitled court located at

1225 Fallon Street, Oakland, CA defendant KUSHWOOD MANUFACTURING, INC.

will demur generally and specially, to the first, second, third, fourth and fifth causes of

action of plaintiff’s first amended complaint on file herein.

9 These demurrers will be made on the grounds that the first, second, third, fourth

10
and fifth causes of action of plaintiff’s first amended complaint fail to allege facts
11
constituting a cause of action against this defendant, and that these causes of action are
12

13 uncertain, as more fully set forth in the attached general and special demurrers, and

14 memorandum of points and authorities.
15

17 Said demurrers will be based upon this notice of demurrer, the attached general

18 and special demurrers, the memorandum of points and authorities in support thereof, the
19
pleadings and records on file herein, and upon all further oral and documentary evidence
20
presented at the hearing of these demurrers.
21

22 DATED: July ~, 2003 JONES, MAHONEY, BRAYTON & SOLL
23
LLP
24

25
aul M. Mahoney
26 Attorney for Defendant
KUSHWOOD MANUFACTURING,
27
INC.
28
JONES, MAHONEY,
BRA\ TON & SOLL LLP
ATiORNEYS AT LAW
150 V/EST FIRST STREET, 2.
SUITE 280
P. O. BOX 940
CLAFEMONT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT
(909) 399-9977
(909) 399-5959 FAX
GENERAL AND SPECIAL DEMURRERS

Code of Civil Procedure Sections 430.10(e) and (f)

Defendant KUSHWOOD MANUFACTURING, INC. demurs to the first, second,

third, fourth and fifth causes of action of plaintiff’s first amended complaint on each and

every one of the following grounds:

10
FIRST CAUSE OF ACTION
11
(Business & Professions Code Section 17500)
12

14 1. The first cause of action does not state facts sufficient to constitute a cause
15
of action. C.C.P. Section 431.10(e).
16

18 2. The first cause of action is uncertain, ambiguous, and unintelligible. C.C.P

19
Section 431.10 (f).
20

22 SECOND CAUSE OF ACTION

23
(Business & Professions Code Section 17500)
24

26 3. The second cause of action does not state facts sufficient to constitute a

27
cause of action. C.C.P. Section 431.10(e).
28
JONES’, MAHONEY,
BRAYTCN & SOLL LLP
ATTORNEYS AT LAW
150 WES FIRST STREET, 3.
SJITE 280
P.O, BOX 940
CLAREMONT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT
(906) 399-9977
(909) 399-5959 FAX
4. The second cause of action is uncertain, ambiguous, and unintelligible.

C.C.P Section 431.10 (f).

THIRD CAUSE OF ACTION

(Business & Professions Code Section 17200)

9 5. The third cause of action does not state facts sufficient to constitute a cause

10
of action. C.C.P. Section 431.10(e).
11

13 6. The third cause of action is uncertain, ambiguous, and unintelligible.

14 C.C.P Section 431.10 (f).
15

17
~ FOURTH CAUSE OF ACTION
18 (Business & Professions Code Section 17200)
19

20
7. The fourth cause of action does not state facts sufficient to constitute a cause
21

22 of action. C.C.P. Section 431.10(e).

24
8. The fourth cause of action is uncertain, ambiguous, and unintelligible.
25

26 C.C.P Section 431.10 (f).

28
JONES, MAHONEY,
BRAYTON & SOLL LLP
ATTORNEYS AT LAW
1SO WESi FIRST STREET, 4.
SUITE 280
P. ©. BOX 940
CLAREMCUNT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT
(90¢ ) 399-9977
(909) 399-5959 FAX
FIFTH CAUSE OF ACTION

(Business & Professions Code Section 17200)

9. The fifth cause of action does not state facts sufficient to constitute a cause

of action. C.C.P. Section 431.10(e).

10. ‘The fifth cause of action is uncertain, ambiguous, and unintelligible. C.C.P

10
Section 431.10 (f).
11

13 DATED: July j , 2003 “ol BRAYTON & SOLL
14

15
Phul M. Mahoney t
16 Attorney for Defendant
17
KUSHWOOD MANUFACTURING
INC.
18

28
JONES, MAHONEY,
BRAYTON & SOLL LLP
ATTORNEYS AT LAW
150 WEST FIRST STREET, 5.
SUITE 280
P.O. BOX 940
CLAR=MONT, CA 91711 DEMURRER TO FIRST AMENDED COMPLAINT
1909) 399-9977
(9¢9) 399-5959 FAX
STATEMENT OF THE CASE

On February 18, 2003 plaintiff KENNETH GOLDMAN filed a complaint on

behalf of the General Public of the State of California pursuant to Business & Professions

Code Sections 17204 and 17535. The complaint alleges that defendant KUSHWOOD

MANUFACTURING, INC. violated Business & Professions Code Section 17204 and

9 17535 with respect to false advertisingof furniture products.

ll
On May 9, 2003 KUSHWOOD filed a demurrer and motion to strike. The hearing
12

13 date was set for June 11, 2003.

15
On June 11, 2003 the court sustained the demurrer and granted the motion to strike
16

17
with leave to amend. Thereafter, plaintiff filed the first amended complaint alleging five

18 causes of action.

20
STATEMENT OF FACTS
21

23
Plaintiff alleges that within the last four years, defendant KUSHWOOD
24
MANUFACTURING, INC. ("KUSHWOOD") has engaged in the business of
25

26 manufacturing, marketing and/or retailing furniture for sale throughout the United States.

27
Plaintiff alleges that KUSHWOOD used representations, advertisements, and promises
28
JONES , MAHONEY,
BRAYTON & SOLL LLP
ATTORNEYS AT LAW
150 WES7 FIRST STREET, 6.
SUITE 280
P. c. BOX 940
CLAREMONT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT
(90 ) 399-9977
(909) 399-5959 FAX
that would cause consumers to believe that the furniture is made of solid oak and maple

wood to induce its purchase and to induce its purchase at a higher price, than furniture

composed of other hardwoods, softwoods, particle board/plywood or veneers.

Plaintiff alleges that KUSHWOOD allowed its collections to be sold without

revealing to consumers that this collection contains woods or wood products other than

solid oak or maple, and that other collections of KUSHWOOD furniture are similarly

10
falsely advertised in California.
11

13 Plaintiff alleges that the wood composition of items of furniture in KUSHWOOQOD's

14 various collections is a material fact for prospective purchasers, and influences their
15
decision of whether or not to purchase a particular collection of furniture. Further,
16

17 plaintiff alleges that items in the various collections have the appearance of solid oak or

18 maple furniture which justifiably leads consumers to believe that they are buying oak or
19
maple furniture, and not simulated oak or maple furniture.
20

22 Plaintiff alleges that these acts constitute a violation of Business and Professions
23
Code Sections 17500 and 17200. Plaintiff seeks injunctive relief and the appointment of
24
a receiver to restore to any person in interest any money paid for furniture as a result of
25

26 the acts of defendants.

28
JONE:3, MAHONEY,
BRAYTON & SOLL LLP
ATTORNEYS AT LAW
150 WEST FIRST STREET, 7.
SUITE 280
P. 0. BOX 940
CLAREMONT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT
(901}} 399-9977
(909) 399-5959 FAX
REQUEST TO TAKE JUDICIAL NOTICE

The court is asked to take judicial notice of the exhibits attached to plaintiff's first

amended complaint. These exhibits purport to be advertisements by KUSHWOOD of the

various furniture which it sells. For the purpose of a demurrer, a court is entitled to take

judicial notice of exhibits attached to a complaint. Frantz v. Blackwell, 189 Cal.App.3d

9 91, 94 (1987).

11
I THE COURT SHOULD SUSTAIN THE DEMURRER AS
12

13 TO THE FIRST, SECOND, THIRD, FOURTH AND

14 FIFTH CAUSES OF ACTION ON THE GROUNDS
15
THAT THEY FAIL TO STATE FACTS
16

17
CONSTITUTING A VIOLATION OF THE UNFAIR

18 COMPETITION LAW OR THE FALSE ADVERTISING
19
STATUTES
20

22 A plaintiff alleging unfair business practices under California Business &
23
Professions Code Sections 17200 and 17500 must state with reasonable particularity the
24
facts supporting the statutory elements of the violation. Khoury v. Maly's of California,
25

26 Inc., 14 Cal.App.4th 612, 619 (1993).
27

28
JONES:, MAHONEY,
BRAYTON & SOLL LLP
ATTORNEYS AT LAW
150 WES’ FIRST STREET, 8.
SUITE 280
P. ¢. BOX 940
CLAREMONT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT
(90) 399-9977
(909) 599-5959 FAX
> - @
The unfair competition law defines unfair competition as any unlawful, unfair or

fraudulent business act or practice and unfair, deceptive, untrue. or misleading

advertising. The Supreme Court has held that in reviewing the scope and purpose of the

unfair competition law and its remedial provisions, "The Legislature intended the

sweeping language to include anything that can properly be called a business practice and

that at the same time is forbidden by law." Stop Youth Addiction, Inc. v. Lucky Stores,

9 Inc. 17 Cal.4th 5553, 560 (1998).

11
In Rubin v. Green, 4 Cal.4th 1187 (1993), the court held.
12

14 "As a result, to state a claim under the act one need
15
not plead or prove the elements of a tort. Instead, one need
16

_17 only show that members of the public are likely to be |

18 deceived." Id. at pp. 1200-1201
19

20
In the instant case, the court is asked to look at Exhibit A to plaintiff's complaint.'
21

22 Not only should the court treat the exhibits as part of the complaint, but also the court
23
should rely on and accept as true the contents of the exhibits and treat as surplusage any
“24
allegations as to the legal affect of the exhibits.
25

26
‘Although a demurrer can be used only to challenge defects that appear on
27 the face of the complaint, the "face of the complaint" includes matters shown in |
28 exhibits attached to the complaint. Barnett v.. Fireman's Fund Ins. Company, 90
JONES, MAHONEY, Cal.App.4th 500, 505 (2001).
BRAYTC'N & SOLL LLP
ATTORNEYS AT LAW
1SO WEST FIRST STREET, 9g, J
DEMURRER TO r FIRST AMENDED COMPLAINT
SYITE 280
P. ©. BOX 940
CLAREMONT, CA 91711
(90) 399-9977
(909) 399-5959 FAX
The first page of Exhibit Ais an advertisement for a "solid oak ‘mission’ panel

queen bed set headboard." There is no allegation in plaintiff's complaint that this item of

furniture is not made with solid oak. Nor is there any allegation how any member of the

public was deceived by this advertisement.

Instead, there are vague allegations that the advertisements fail to reveal the true

nature of the woods contained in the furniture. Conspicuously absent from plaintiff's first

10 amended complaint is any allegation that the use of the word "solid oak" in connection
11
with this advertisement is in any way deceptive.
12
13
14 It is not enough for plaintiff to simply allege that the advertisement is misleading,
15
when the advertisement itself is attached as an exhibit to the complaint. Plaintiff has the
16
17 burden of pleading with reasonable particularity exactly how this advertisement is

18 misleading.
19
20
The same arguments hold true for the second through seventeenth exhibits that are
21
22 attached to plaintiff's complaint. They refer to different items of furniture, such as

23 headboards, drawers, and chests that are advertised as solid oak. Nine of the
24
advertisements for drawers made reference to a bottom cedar drawer. Again, there is no
25
26 allegation as to how this is false or misleading.

28
JONES’, MAHONEY,
BRAYTON & SOLL LLP
ATTOR VEYS AT LAW
150 WES’" FIRST STREET, ‘10.
SIJITE 280
P. ©. BOX 940
CLAREMONT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT .
(909) 399-9977
(909) 399-5959 FAX
; In addition, plaintiff's first amended complaint seeks injunctive relief against |

KUSHWOOD. In order to obtain injunctive relief, plaintiff must allege facts showing that

there is a threat of irreparable harm and that the violative acts must likely to reoccur.

Code of Civil Procedure Section 526(a)(1) and (2); Cisneros v. U.D. Registry : Inc., 39

Cal. App.4th 548, 574 (1995).

In the instant case, there are no allegations of irreparable harm to anyone, because

10 there has been no showing that even one single person ‘in the entire world purchased
11
furniture that was not as represented. Nor is there any showing that the alleged violative
12
13 acts are likely to recur. These are the essential elements for a cause of action for

14 injunctive relief. Since the first amended complaint fails to allege facts constituting a -
15
cause of action, the demurrer should be sustained.
16
17
18 Il ‘THE HEARING OF THE DEMURRER DOES NOT
19
VIOLATE RULE 325(b).
20
21
22 - California Rules of Court, Rule 325(b) provides that a demurrer shall not be set
23
for hearing more than 35 days following the filing of the demurrer, or on the first date
24
available.to the court thereafter.
25
26
27 The court can take judicial notice of the fact that it was on vacation during August,
28
JONES, MAHONEY,,.
BRAYTON & SOLL LLP
ATTORNEYS AT LAW
1SO WEST FIRST STREET, soot , 11. : . ,

DEMURRER TO FIRST AMENDED COMPLAINT.
SUITE 280
P, Oo. BOX 940
CLARENIONT, CA 91711
(909) 399-9977
(909) 399-5989 FAX
and that the first available date that moving party could set for the demurrer for hearing

was August 26, 2003.

CONCLUSION

For each of the foregoing reasons, the court should sustain the demurrer to

9 plaintiff's first amended complaint.

11
DATED: July (, 2003 JONES, MA EY, BRAYTON & SOLL
12

14 Paul M. Mahoney
15
Attorney for Defendant
KUSHWOOD MANUFACTURING,
16 INC.
17

-19

28
JONES, MAHONEY,
BRAYTON & SOLL LLP
ATTOI:NEYS AT LAW
150 WEST FIRST STREET, 12
SUITE 280
P. 0. BOX 940
CLAREN.ONT, CA 91711
DEMURRER TO FIRST AMENDED COMPLAINT
(969) 399-9977
{909) 399-5959 FAX
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age
of 18 and not a party to the within action; my business address is 150 West First Street,
Suite 280, Claremont, California 91711.

On July % 2003, I served the foregoing document described as NOTICE BY
DEFENDANT KUSHWOOD MANUFACTURING, INC. OF HEARING ON
DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; GENERAL
AND SPECIAL DEMURRERS; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF on the parties in this action by placing true
copies thereof in sealed envelope(s) addressed as follows:
9

10
SEE ATTACHED

ll [X] (BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed
in the U.S. mail at Claremont, California. I am "readily familiar" with the firm's
12
practice of collection and processing correspondence for mailing. It is deposited
13 with U.S. Postal Service on that same day in the ordinary course of business. Iam
aware that on motion of the party served, service is presumed invalid if postal
14 cancellation date or postage meter date is more than one day after date of deposit for
mailing in affidavit.
15

16 [ ] (BY PERSONAL DELIVERY) I delivered such envelope by hand to the office of
the addressee(s) noted above.
17

18 [ ] (BY FACSIMILE TRANSMISSION) I caused such document to be transmitted
to the addressee(s) facsimile number noted above. The facsimile machine I used
19 complied with Rule 2003(3) and the transmission was reported as complete and
without error. Pursuant to Rule 2005(i), I caused the machine to print a transmission
20
record of the facsimile transmission, a copy of which is attached to this declaration.
21
Executed on July K, 2003, at Claremont, California.
22
I declare under penalty of perjury under the laws of the State of California that the
23
above is true and correct and, that I am employed in the office of a member of the bar of
24 this court at whose direction the service was_made.

25
Lyd
“PAT HEIN
Nope
26

28
JONE:5, MAHONEY,
BRAYTCN & SOLL LLP
ATTORNEYS AT LAW
150 WEST FIRST STREET,
SUITE 280
P.O. BOX 940
CLAREMONT, CA 91711
{90)}) 399-9977
(909) 399-5959 FAX
David M. Fried
THE LAW OFFICES OF DAVID M. FRIED
214 Grant Avenue, Ste. 400
San Francisco, CA 94108

G. Richard Baker
Bert J. Miano
CAMPBELL & BAKER
825 Financial Center
505 Twentieth Street North
Birmingham, AL 35203

Marcus Merchasin
9 225 Bush St., 16th Floor
San Francisco, CA 94104
10

11 Olive Lee Thaler
SQUIRE SANDERS & DEMPSEY, LLP
12 One Maritime Plaza, Ste. 300
13 San Francisco, CA 94104

14 F. Michael Woodland
PARK & WOODLAND
15
711 West 17th St.
16 Santa Ana, CA 92706-3693

| 24

28
JONES. MAHONEY,
BRAYTON & SOLL LLP
ATTORNEYS AT LAW
150 WEST FIRST STREET,
SLITE 280
! P. O. BOX 940
| CLAREMCNT, CA 91711
(909 399-9977
(909) 299-5959 FAX

Case Info

Case No.

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Document Filed Date

July 09, 2003

Case Filing Date

February 18, 2003

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Motion,Ex Parte: Goldman VS Kushwood Manufacturing, Inc.

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