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( 87/15/2003 14:83 4154642812 BUELL BERMER PAGE 85
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1 E. Rick Buell, II (SBN 63924)
LAW OFFICES OdF E. éuclK 1§UFL11.7 Jn ] E D
2 700 Larkspur Landing Circle, Suite , -
Larkspur C‘fi; 92%3191 ALAMEDA COUNTY
3 Tel: (415 4
Fax: ((415)) 4642012 JuL 1 5 2003
| 4 email: rbuell@buell-law.us ek OF THE SUPE‘ESF‘ COURT .
| 5 Attorneys for Plaintiff & 4, e
GWEN R. SYKES / o
6 .
7 .
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF ALAMEDA
10
11 | GWENR. SYKES g CaseNo. RG0310664 6
12 Plaintiff, ) COMPLAINT FOR BREACH OF
Vs, g CONTRACT, CONSTRUCTIVE TRUST,
13 FRAUD, NEGLIGENCE AND BATTERY
DOUGLAS SYKES, an individual, and )
14 DOES 1-20, inclusive §
15 Defendant. )
By E AX
16
17 COMES NOW plaintiff, GWEN R. SYKES, and alleges as follows:
18 | GENERAL ALLEGATIONS
19 1. Plaintiff is a resident of Alameda County, California,
| 20 2. Defendant, DOUGLAS SYKES, is, and at all times relevant herein has been, a
21 |/ resident of Alameda County, California.
~_} 22 3. Plaintiff is informed and believes, and on that basis alleges, that at all times herein
‘ _f’ ;%’1 23 each defendant Was a duly authorized agent, employee, joint venturer or principal or partner of
i.%’ E;' 24 each of the remaining defendants and in doing the things herein alleged was acting in the course
< 25 and scope of such agency and/or employment.
26 4. The true names and capacities, whether individual, corporate, associate or otherwise of
27 defendants Does 1-20, inclusive, are unknown to plaintiff and, therefore, plaintiff sues said
28 defendants by such fictitious names, and plaintiff will amend this complaint to show their true
COMPLAINT FOR BREACH OF CONTRACT, coxvsmvcnvs
TRUST, FRAUD, NEGLIGENCE AND BATTERY '
JUL 15 2883 14:15 4154642012 PAGE.B5
£ 97/15/2083 14:83 4154642012 BLUELL BERNER PAGE 05
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names and/or capacities when the same have been ascertained. Plaintiff is further informed and
believes, and on that basis alleges, that each of the fictitiously named defendants is in some
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manner responsible for the events and happenings herein referred to and proximately caused the
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damage suffered by plaintiff. For ease of reference, whenever a named defendant is referred to
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herein, such reference shall be deemed to include Does 1-20.
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5. Plaintiff first began a relationship with defendant in the spring of 1991. Shortly after
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the beginning of the relationship, plaintiff and defendant began cohabitating on a part time basis,
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which cohabitation continued until August 2001 at which time plaintiff moved into a house with
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defendant located in at 275 Alvarado Road, Berkeley CA (the “Berkeley House”).
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6. Prior to the time at which plaintiff and defendant first became intimate, plaintiff asked
11 defendant if he had any sexually transmittable diseases (“STD”). Defendant responded to
12 plaintiff that he did not have any STD, notwithstanding the fact that he knew at the time he was
13 infected with herpes. In reliance on defendant’s knowing false representation that he was free
14 from STD, plaintiff had intimate relations with defendant, and, as a result, she became infected
15 with herpes in 1991. Plaintiff became emotionally distressed over the fact she had contacted
16 herpes from plaintiff, including the issues that, if defendant’s and her relationship should end,
17 ‘she would not be able to date others due to her infection and she could not have more children,
18 and she informed defendant of her concems. Defendant responded by: (1) requesting that she
19 keep the matter secret, because he was concerned that disclosure might damage his legal career
20 and reputation; (2) requesting that she obtain medical treatment for herpes outside of the Untied
21 States so as to preserve the secret; (3) telling her not to worry about dating in the future or having
22 more children, because they would be together forever in a relationship and between them they
23 already had two children; (4) they would share the work of maintaining a relationship and serve
as each other’s friend, confidant and companion; and (5) he would support her for the remainder
25 of her life. In addition, defendant told plaintiff she did not need to work or could work as little as
26 she wanted, because he wanted her to be devoted to him and to make him he; main priority. At
27 this time plaintiff was a stud_eht working on obtaining her Ph.D., with the desire to bécome a
28 professor at a major black university or college. Plaintiff accepted defendant’s terms and: (1)
COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE
TRUST, FRAUD, NEGLIGENCE AND BATTERY -2-
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‘kept the fact of her infection secret; (2) continued with the relationship; (3) devoted herself to
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defendant as her main priority; and (4) gave up her goal of becoming a professor.
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7. In 1992 plaintiff suffered an ectopic pregnancy, which caused internal damage to ber
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Plaintiff is informed and believes that the ectopic pregnancy may have
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that required surgery.
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been the result of the herpes infection which she had obtained from plaintiff. Again, defendant
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requested that plaintiff keep her medical condition secret, asked her to continue their |
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relationship, and told her that she need not worry, because he would take care of her medical
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needs and financial support. Plaintiff agreed to defendant’s requests and continued the
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relationship.
8. Commencing in 1994 defendant informed plaintiff that he wanted to bujld a new
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house in which they would live together. Defendant told plaintiff that the house would be theirs,
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which plaintiff understood to mean that they would own the house together, and he asked
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plaintiff for her assistance in building the house. Plaintiff agreed and spent considerable time
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and energy in helping build the Berkeley Home, which they first occupied in August 2000.
9. Plaintiff and defendant were scheduled to be married in November 2000. However,
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earlier in that previous month defendant, upon leaning from plaintiff that she had contacted
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another STD from defendant, confessed that he had obtained the disease as a result of a recent
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affair. Upset with defendant, plaintiff cancelled the wedding and ended their relationship.
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10. After plaintiff called the marriage off, in the winter and early spring of 2001
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defendant began to aggressively pursue plaintiff to recommence their relationship and reaffirmed
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his earlier promises of financial support for life. Defendant further promised to marry plaintiff.
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Plaintiff finally agreed, and plaintiff and defendant were married in August of 2001.
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11. In June 2002 plaintiff caught defendant having yet another affair. After plaintiff
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confronted defendant, defendant, unbeknownst to plaintiff, filed for divorce in June 2002, in
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Alameda County. Defendant served plaintiff with the divorce papers, and she first became aware
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of the divorce action, in February 2003.
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12. Durning their relationship, defendant managed plaintiff’s investments and told her that
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he was providing for her financia) security in the event of his death. Defendant told plaintiff that
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COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE
TRUST, FRAUD, NEGLIGENCE AND BATTERY -3-
Ji_L 15 2043 14:16 4154642012 PAGE.R7
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he would provide for her financially in the event of his death. In addition, plaintiff is informed
and beljeves that defendant purchased a Jife insurance policy in which she was named the -
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beneficiary.
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FIRST CAUSE OF ACTION
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(Breach of Express Oral Contract)
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13. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1
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through 12 hereof.
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14. Plaintiff and defendant first entered into an express oral contract in 199] the terms
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and conditions of which are set forth in paragraph 6 above. This express oral contract was
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subsequently reaffirmed as stated in paragraphs 7, 8 and 12 hereof to also provide plaintiff with a
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co-ownership interest in the Berkeley Home and other benefits.
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15. Plaintiff has performed all of her obligations under thjs express oral contract.
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16. Notwithstanding plaintiff's performance, defendant Breached this express ora)
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contract by failing to honor his obligations under the express ora] contract in that he has failed to
support plaintiff, pay for her medical needs, provide financial security for her upon his death or
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provide her with a co-ownership interest in the Berkeley Home.
17. The statute of frauds is not available as a defense to defendant because: (1) plaintiff
has performed her part of the express oral contract and (2) defendant is estopped from pleading
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the statute of frauds, because he accepted the benefits of plaintiff’s performance, and plaintiff
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detrimentally relied on his contractual promises in performing her obligations thereunder.
18. As aresult of defendant’s breach of this express oral agreement, plaintiff has
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suffered damages in excess of $25,000, and leave is requested to amend this complaint to
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conform to proof of such damages at time of trial.
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WHEREFORE, plaintiff prays for judgment as hereinafter set forth.
SECOND CAUSE OF ACTION
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(Breach of Implied Oral Contract)
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19. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1
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through 12 hereof.
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COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCT lVE
TRUST, FRAUD, NEGLIGENCE AND BATTERY
JUL 15 2883 14:17 41546420812 PAGE .38
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20. Plaintiff performed her obligations under the contract in that: (1) she kept the matter
of her infection by defendant of sexually transmitted diseases secret; (2) obtained medical
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treatment for herpes outside of the Untied States so as to preserve the secret; (3) did not
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terminate her relationship with deféndant; (4) served as defendant’s friend, confidant and
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companjon; (4) gave up her career aspirations of becoming a professor; and (5) assisted in the
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building of the Berkeley Home with the expectation that she would be compensated in the form
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of support for the remainder of her life, payment of her medical expenses, provision of adequate
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life insurance, provision for financial security upon defendant’s death and a co-ownership
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interest in the Berkeley Home. Defendant’s conduct in so supporting plaintiff while they lived
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together, requesting her to keep her infections secret and continue their relationship, and
11 accepting the benefit of her services in serving as his friend, confidant and companion, giving up
12 her aspirations of becoming a professor, and assisting in the building of the Berkeley Home
13 created an implied oral contract that plaintiff would take such action and perform such services
14 and that, in exchange therefore, defendant would compensate plaintiff in the form of support for
15 the remainder of her life, pay for her medical expenses, provision of adequate life insurance,
16 provision for financial support on defendant’s death and a co-ownership interest in the Berkeley
17 Home.
18 21. Plaintiff bas performed all of her obligations under this implied contract.
19 22. Notwithstanding plaintiff’s performance, defendant has breached this implied oral
20 contract by failing to honor his obligations under the implied oral contract in that he has failed to
21 support plaintiff, pay for her medical needs, provide financial security for her upon his death or
22 provide her with a co-ownership interest in the Berkeley Home.
23 23. The statute of frauds is not available as a defense to defendant because: (1) plaintiff
24 has performed her part of the implied oral contract and (2) defendant is estopped from pleading
25 the statute of frauds, because he accepted the benefits of plaintiff’s performance, and plaintiff
26 detrimentally relied on his contractual promises in performing her obligations.
27 24. As a result of defendant’s breach of this implied oral contract, plaintiff has suffered
28 damages in excess of $25,000, and Jeave is requested to amend this complaint to conform to
COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE
TRUST, FRAUD, NEGLIGENCE AND BATTERY -5-
JUL 15 2883 14:17 41546420812 ' PAGE. @S
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proof of such damages at time of trial.
WHEREFORE, plaintiff prays for judgment as is hereinafter set forth,
THIRD CAUSE OF ACTION
(Constructive Trust)
25. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1
through 12 hereof.
26. At the time Defendant and plaintiff entered into the oral contractual arrangements
described in paragraph 8 above whereby Defendant promised to a co-ownership interest in the
Berkeley Home to plaintiff, the most confidential relations existed between plaintiff and defendant,
10 and plaintiff reposed the greatest confidence and trust in defendant to honor such promises. As a
11 result of this confidence reposed in defendant, and of which defendant was aware, defendant did
12 retain title, possession, custody, and control of such Berkeley Home.
13 27. As a result of defendant filing for divorce, plaintiff has demanded that her name be
14 placed on title to the Berkeley Home. Defendant has refused to do so. Because of the violation of
15 the confidence plaintiff had placed in defendant and of the repudiation of the mutual understanding
16 between plaintiff and defendant respecting ownership of the Berkeley Home, defendant should be
17 declared by this court to be an involuntary trustee, holding one-half of the Berkeley Home, and the
18 rents, 1ssues, and profits therefrom in constructive trust for plaintiff with the duty to convey the same
19 to her.
20 WHEREFORE, plaintiff prays for judgment as hereinafter set forth.
21 FOURTH CAUSE OF ACTION
(Fraud—Contract)
22
23 28. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1
24 through 12 hereof.
25 29. The representations made by defendant that he would support plaintiff for her life, pay
26 for her medical needs, provide for her financial security in the event of his death and provide her
27 with a co-ownership interest in the Berkeley Home were false in that defendant had no intent of
28 honoring these promisesat the time they were made.
COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE
TRUST, FRAUD, NEGLIGENCE AND BATTERY -6-
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10. Defendant knew at the time he made these representations that they were, in fact, false.
Defendant made these false representations with the intend to defraud plaintiff by
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31.
inducing her enter into the express and/or implied ora] contract described in paragraphs 6, 7, 8 and
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12 above
32. Plaintiff was unaware of the falsity of these representations and materially relied on these
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representations in entering into such contract.
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33. Asaproximate result of defendant’s false representations, plaintiff has suffered damages,
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including emotional distress. The full nature and extent of such damages is unknown to plaintiffand
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leave is requested to amend this claim to conform to proof at time of trial.
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34. In doing the acts alleged herein, defendant acted with fraud, oppression and malice, and
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plaintiff is entitled to punitive damages.
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FIFTH CAUSE OF ACTION
(Negligence-Herpes Infection)
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35. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1
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through 12 hereof.
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36. Defendant, having knowledge of the fact that he was infected with herpes, had a duty to
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disclose such fact to plaintiff prior to engaging in sexual intercourse with her.
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37. Defendant breached this duty to disclose by failing to inform defendant that he had
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herpes prior to engaging in sexual intercourse with her.
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38. Asaresult of defendant’s breach of his duty to disclose, plaintiff has suffered damages,
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including emotional distress. The fu)l nature and extent of such damages is unknown to plaintiff and
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leave is requested to amend this claim to conform to proof at time of trial.
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39. Defendant is estopped from pleading as a defense the statute of limitations, because, after
plaintiff disclosed her concemns with being infected with herpes by defendant, defendant made the
fraudulent promises set forth in paragraphs 6 through 12 above thereby inducing plaintiff not to take
any lega] action prior to the running of the statute of limitations.
WHEREFORE, plaintiff prays for judgment as hereinafter set forth.
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COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE
TRUST, FRAUD, NEGLIGENCE AND BATTERY -7-
JUL. 1S 2184as3 14:18 4154642012 PRGE.11
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SIXTH CAUSE OF ACTION
(Fraud-Herpes Infection)
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40. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1
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through 12 hereof. |
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41. Defendant’s denjal of being infected with herpes when plaintiff asked defendant if he
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had any STD was false in that defendant at that time was infected with herpes.
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42. At the time defendant made such false representation, defendant knew hé was infected
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with herpes, and that such representation was false.
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43. Defendant made such false representations with the intent to defraud plaintiff so that she
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would engage in sexual intercourse with him.
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44, Plaintiff was unaware of the falsity of such representations and relied on such false
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representations as a condition of having sexual intercourse with defendant.
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45. As aresult of defendant’s fraud, plaintiff has suffered damages, including emotional
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distress. The full nature and extent of such damages is unknown to plaintiff and leave is requested
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to amend this claim to conform to proof at time of trial.
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46. Defendant is estopped from pleading as a defense the statute of limitations, because after
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plaintiff disclosed her concemns with being infected with herpes by defendant, defendant made the
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fraudulent promises set forth in paragraphs 6 through 12 above thereby inducing plaintiff not to take
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any legal action prior to the running of the statute of limitations.
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47. In doing the acts alleged herein, defendant acted with fraud, oppression and malice, and
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plaintiff is entitled to punitive damages.
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WHEREFORE, plaintiff prays for judgment as hereinafter set forth.
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SEVENTH CAUSE OF ACTION
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(Battery-Herpes Infection)
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48. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1
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through 12 hereof.
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49. Bynegligently and/or fraudulently failing to disclose his infection with herpes, defendant
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engaged in offensive contact with plaintiff without her informed consent.
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COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE
TRUST, FRAUD, NEGLIGENCE AND BATTERY -8-
Jui. 15 2883 14:18 » 4154642812 PRAGE.
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50. As aproximate result of defendant’s intentional conduct, plaintiff has suffered damages,
including emotional distress. The full nature and extent of such damages is unknown to plaintiff and
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leave is requested to amend this claim to conform to proof at time of trial.
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51. Defendant is estopped from pleading as a defense the statute of limitations, because after
plaintiff disclosed her concemns with being infected with herpes by defendant, deféndant made the
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fraudulent promises set forth in paragraphs 6 through 12 above thereby inducing plaintiff not to take
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any legal action prior to the running of the statute of limjtations.
52. In doing the acts alleged herein, said defendant acted with fraud, oppression and malice,
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and plaintiff is entitled to punitive damages. |
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WHEREFORE, plaintiff prays judgment as follows:
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ON THE FIRST, SECOND, FOURTH, FIFTH, SIXTH AND SEVENTH CAUSES OF
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ACTION:
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1. Damages according to proof at time of trial
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ON THE THIRD CAUSE OF ACTION:
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1. That defendant be declared the constructive trustee of one-half of the Berkeley Home, and
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that he be compelled to transfer legal title and the possession of such property to plaintiff.
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ON THE FOURTH, SIXTH AND SEVENTH CAUSE OF ACTION:
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1. Punitive damages. |
ON ALL CAUSES OF ACTION:
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1. Costs of suit;
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2. Prejudgment interest;
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3. Attomeys fees; and
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4. For all such other relief as the court deems just and appropriate.
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DATED: July 15, 2003 LAW OFFICES OF E. RICK BUELL, II
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E. Rick Buell, II
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Attorney for Plaintiff
GWEN R. SYKES
COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE
TRUST, FRAUD, NEGLIGENCE ‘AND BATTERY -9-
Jut. 15 2883 14:18 4154642812 PAGE.13
Preview
gl I — ( 87/15/2003 14:83 4154642812 BUELL BERMER PAGE 85 . ° o imummum NS 1 E. Rick Buell, II (SBN 63924) LAW OFFICES OdF E. éuclK 1§UFL11.7 Jn ] E D 2 700 Larkspur Landing Circle, Suite , - Larkspur C‘fi; 92%3191 ALAMEDA COUNTY 3 Tel: (415 4 Fax: ((415)) 4642012 JuL 1 5 2003 | 4 email: rbuell@buell-law.us ek OF THE SUPE‘ESF‘ COURT . | 5 Attorneys for Plaintiff & 4, e GWEN R. SYKES / o 6 . 7 . 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF ALAMEDA 10 11 | GWENR. SYKES g CaseNo. RG0310664 6 12 Plaintiff, ) COMPLAINT FOR BREACH OF Vs, g CONTRACT, CONSTRUCTIVE TRUST, 13 FRAUD, NEGLIGENCE AND BATTERY DOUGLAS SYKES, an individual, and ) 14 DOES 1-20, inclusive § 15 Defendant. ) By E AX 16 17 COMES NOW plaintiff, GWEN R. SYKES, and alleges as follows: 18 | GENERAL ALLEGATIONS 19 1. Plaintiff is a resident of Alameda County, California, | 20 2. Defendant, DOUGLAS SYKES, is, and at all times relevant herein has been, a 21 |/ resident of Alameda County, California. ~_} 22 3. Plaintiff is informed and believes, and on that basis alleges, that at all times herein ‘ _f’ ;%’1 23 each defendant Was a duly authorized agent, employee, joint venturer or principal or partner of i.%’ E;' 24 each of the remaining defendants and in doing the things herein alleged was acting in the course < 25 and scope of such agency and/or employment. 26 4. The true names and capacities, whether individual, corporate, associate or otherwise of 27 defendants Does 1-20, inclusive, are unknown to plaintiff and, therefore, plaintiff sues said 28 defendants by such fictitious names, and plaintiff will amend this complaint to show their true COMPLAINT FOR BREACH OF CONTRACT, coxvsmvcnvs TRUST, FRAUD, NEGLIGENCE AND BATTERY ' JUL 15 2883 14:15 4154642012 PAGE.B5 £ 97/15/2083 14:83 4154642012 BLUELL BERNER PAGE 05 ~.r names and/or capacities when the same have been ascertained. Plaintiff is further informed and believes, and on that basis alleges, that each of the fictitiously named defendants is in some N manner responsible for the events and happenings herein referred to and proximately caused the W damage suffered by plaintiff. For ease of reference, whenever a named defendant is referred to &~ herein, such reference shall be deemed to include Does 1-20. W 5. Plaintiff first began a relationship with defendant in the spring of 1991. Shortly after & the beginning of the relationship, plaintiff and defendant began cohabitating on a part time basis, ~3 which cohabitation continued until August 2001 at which time plaintiff moved into a house with 00 defendant located in at 275 Alvarado Road, Berkeley CA (the “Berkeley House”). O 6. Prior to the time at which plaintiff and defendant first became intimate, plaintiff asked 11 defendant if he had any sexually transmittable diseases (“STD”). Defendant responded to 12 plaintiff that he did not have any STD, notwithstanding the fact that he knew at the time he was 13 infected with herpes. In reliance on defendant’s knowing false representation that he was free 14 from STD, plaintiff had intimate relations with defendant, and, as a result, she became infected 15 with herpes in 1991. Plaintiff became emotionally distressed over the fact she had contacted 16 herpes from plaintiff, including the issues that, if defendant’s and her relationship should end, 17 ‘she would not be able to date others due to her infection and she could not have more children, 18 and she informed defendant of her concems. Defendant responded by: (1) requesting that she 19 keep the matter secret, because he was concerned that disclosure might damage his legal career 20 and reputation; (2) requesting that she obtain medical treatment for herpes outside of the Untied 21 States so as to preserve the secret; (3) telling her not to worry about dating in the future or having 22 more children, because they would be together forever in a relationship and between them they 23 already had two children; (4) they would share the work of maintaining a relationship and serve as each other’s friend, confidant and companion; and (5) he would support her for the remainder 25 of her life. In addition, defendant told plaintiff she did not need to work or could work as little as 26 she wanted, because he wanted her to be devoted to him and to make him he; main priority. At 27 this time plaintiff was a stud_eht working on obtaining her Ph.D., with the desire to bécome a 28 professor at a major black university or college. Plaintiff accepted defendant’s terms and: (1) COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE TRUST, FRAUD, NEGLIGENCE AND BATTERY -2- JuL 1S 20803 14:16 4154642012 PAGE. @B 87/15/2e83 14:83 4154642012 BUELL BERNER " PAGE - B7 ‘kept the fact of her infection secret; (2) continued with the relationship; (3) devoted herself to o defendant as her main priority; and (4) gave up her goal of becoming a professor. A 7. In 1992 plaintiff suffered an ectopic pregnancy, which caused internal damage to ber A Plaintiff is informed and believes that the ectopic pregnancy may have L that required surgery. R been the result of the herpes infection which she had obtained from plaintiff. Again, defendant SR requested that plaintiff keep her medical condition secret, asked her to continue their | e relationship, and told her that she need not worry, because he would take care of her medical TN needs and financial support. Plaintiff agreed to defendant’s requests and continued the (Vo TN relationship. 8. Commencing in 1994 defendant informed plaintiff that he wanted to bujld a new O house in which they would live together. Defendant told plaintiff that the house would be theirs, = which plaintiff understood to mean that they would own the house together, and he asked N plaintiff for her assistance in building the house. Plaintiff agreed and spent considerable time e AW and energy in helping build the Berkeley Home, which they first occupied in August 2000. 9. Plaintiff and defendant were scheduled to be married in November 2000. However, o N e T earlier in that previous month defendant, upon leaning from plaintiff that she had contacted N another STD from defendant, confessed that he had obtained the disease as a result of a recent N affair. Upset with defendant, plaintiff cancelled the wedding and ended their relationship. e 0 10. After plaintiff called the marriage off, in the winter and early spring of 2001 W defendant began to aggressively pursue plaintiff to recommence their relationship and reaffirmed O his earlier promises of financial support for life. Defendant further promised to marry plaintiff. = Plaintiff finally agreed, and plaintiff and defendant were married in August of 2001. I N 11. In June 2002 plaintiff caught defendant having yet another affair. After plaintiff W confronted defendant, defendant, unbeknownst to plaintiff, filed for divorce in June 2002, in R A Alameda County. Defendant served plaintiff with the divorce papers, and she first became aware R L of the divorce action, in February 2003. O A S R 12. Durning their relationship, defendant managed plaintiff’s investments and told her that ~J] he was providing for her financia) security in the event of his death. Defendant told plaintiff that I 00 | COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE TRUST, FRAUD, NEGLIGENCE AND BATTERY -3- Ji_L 15 2043 14:16 4154642012 PAGE.R7 ': : 97/15/2883 14:83 4154642812 BUELL BERNER PAGEi 19)=} he would provide for her financially in the event of his death. In addition, plaintiff is informed and beljeves that defendant purchased a Jife insurance policy in which she was named the - N beneficiary. W FIRST CAUSE OF ACTION s (Breach of Express Oral Contract) W 13. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1 & through 12 hereof. 3 14. Plaintiff and defendant first entered into an express oral contract in 199] the terms 0 and conditions of which are set forth in paragraph 6 above. This express oral contract was O subsequently reaffirmed as stated in paragraphs 7, 8 and 12 hereof to also provide plaintiff with a O NNNNENNNN’—‘HHD—'D—‘P‘)—IMMH co-ownership interest in the Berkeley Home and other benefits. - 15. Plaintiff has performed all of her obligations under thjs express oral contract. N 16. Notwithstanding plaintiff's performance, defendant Breached this express ora) bW contract by failing to honor his obligations under the express ora] contract in that he has failed to support plaintiff, pay for her medical needs, provide financial security for her upon his death or T provide her with a co-ownership interest in the Berkeley Home. 17. The statute of frauds is not available as a defense to defendant because: (1) plaintiff has performed her part of the express oral contract and (2) defendant is estopped from pleading o the statute of frauds, because he accepted the benefits of plaintiff’s performance, and plaintiff OO detrimentally relied on his contractual promises in performing her obligations thereunder. 18. As aresult of defendant’s breach of this express oral agreement, plaintiff has o= suffered damages in excess of $25,000, and leave is requested to amend this complaint to N conform to proof of such damages at time of trial. W WHEREFORE, plaintiff prays for judgment as hereinafter set forth. SECOND CAUSE OF ACTION W (Breach of Implied Oral Contract) AN 19. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1 ) through 12 hereof. o0 COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCT lVE TRUST, FRAUD, NEGLIGENCE AND BATTERY JUL 15 2883 14:17 41546420812 PAGE .38 '87/15/2083 14:83 41546420812 BUELL BERNER PAGE B85 20. Plaintiff performed her obligations under the contract in that: (1) she kept the matter of her infection by defendant of sexually transmitted diseases secret; (2) obtained medical N treatment for herpes outside of the Untied States so as to preserve the secret; (3) did not W terminate her relationship with deféndant; (4) served as defendant’s friend, confidant and H companjon; (4) gave up her career aspirations of becoming a professor; and (5) assisted in the W building of the Berkeley Home with the expectation that she would be compensated in the form Oy of support for the remainder of her life, payment of her medical expenses, provision of adequate N\ life insurance, provision for financial security upon defendant’s death and a co-ownership 00 interest in the Berkeley Home. Defendant’s conduct in so supporting plaintiff while they lived D together, requesting her to keep her infections secret and continue their relationship, and 11 accepting the benefit of her services in serving as his friend, confidant and companion, giving up 12 her aspirations of becoming a professor, and assisting in the building of the Berkeley Home 13 created an implied oral contract that plaintiff would take such action and perform such services 14 and that, in exchange therefore, defendant would compensate plaintiff in the form of support for 15 the remainder of her life, pay for her medical expenses, provision of adequate life insurance, 16 provision for financial support on defendant’s death and a co-ownership interest in the Berkeley 17 Home. 18 21. Plaintiff bas performed all of her obligations under this implied contract. 19 22. Notwithstanding plaintiff’s performance, defendant has breached this implied oral 20 contract by failing to honor his obligations under the implied oral contract in that he has failed to 21 support plaintiff, pay for her medical needs, provide financial security for her upon his death or 22 provide her with a co-ownership interest in the Berkeley Home. 23 23. The statute of frauds is not available as a defense to defendant because: (1) plaintiff 24 has performed her part of the implied oral contract and (2) defendant is estopped from pleading 25 the statute of frauds, because he accepted the benefits of plaintiff’s performance, and plaintiff 26 detrimentally relied on his contractual promises in performing her obligations. 27 24. As a result of defendant’s breach of this implied oral contract, plaintiff has suffered 28 damages in excess of $25,000, and Jeave is requested to amend this complaint to conform to COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE TRUST, FRAUD, NEGLIGENCE AND BATTERY -5- JUL 15 2883 14:17 41546420812 ' PAGE. @S 87/15/2083 14:03 41546420812 BUELL BERNER PAGE 19 proof of such damages at time of trial. WHEREFORE, plaintiff prays for judgment as is hereinafter set forth, THIRD CAUSE OF ACTION (Constructive Trust) 25. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1 through 12 hereof. 26. At the time Defendant and plaintiff entered into the oral contractual arrangements described in paragraph 8 above whereby Defendant promised to a co-ownership interest in the Berkeley Home to plaintiff, the most confidential relations existed between plaintiff and defendant, 10 and plaintiff reposed the greatest confidence and trust in defendant to honor such promises. As a 11 result of this confidence reposed in defendant, and of which defendant was aware, defendant did 12 retain title, possession, custody, and control of such Berkeley Home. 13 27. As a result of defendant filing for divorce, plaintiff has demanded that her name be 14 placed on title to the Berkeley Home. Defendant has refused to do so. Because of the violation of 15 the confidence plaintiff had placed in defendant and of the repudiation of the mutual understanding 16 between plaintiff and defendant respecting ownership of the Berkeley Home, defendant should be 17 declared by this court to be an involuntary trustee, holding one-half of the Berkeley Home, and the 18 rents, 1ssues, and profits therefrom in constructive trust for plaintiff with the duty to convey the same 19 to her. 20 WHEREFORE, plaintiff prays for judgment as hereinafter set forth. 21 FOURTH CAUSE OF ACTION (Fraud—Contract) 22 23 28. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1 24 through 12 hereof. 25 29. The representations made by defendant that he would support plaintiff for her life, pay 26 for her medical needs, provide for her financial security in the event of his death and provide her 27 with a co-ownership interest in the Berkeley Home were false in that defendant had no intent of 28 honoring these promisesat the time they were made. COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE TRUST, FRAUD, NEGLIGENCE AND BATTERY -6- Jul 15 2883 14:1°7 4154642012 PRGE.18 @7/15/2883 14:83 41546420812 BUELL BERNER PAGE 11 10. Defendant knew at the time he made these representations that they were, in fact, false. Defendant made these false representations with the intend to defraud plaintiff by N 31. inducing her enter into the express and/or implied ora] contract described in paragraphs 6, 7, 8 and W 12 above 32. Plaintiff was unaware of the falsity of these representations and materially relied on these W representations in entering into such contract. A 33. Asaproximate result of defendant’s false representations, plaintiff has suffered damages, N including emotional distress. The full nature and extent of such damages is unknown to plaintiffand 00 leave is requested to amend this claim to conform to proof at time of trial. O 34. In doing the acts alleged herein, defendant acted with fraud, oppression and malice, and | = = plaintiff is entitled to punitive damages. - T N R FIFTH CAUSE OF ACTION (Negligence-Herpes Infection) Y FU I 35. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1 - U T through 12 hereof. S 36. Defendant, having knowledge of the fact that he was infected with herpes, had a duty to N - disclose such fact to plaintiff prior to engaging in sexual intercourse with her. N < I 37. Defendant breached this duty to disclose by failing to inform defendant that he had A N herpes prior to engaging in sexual intercourse with her. U A Vs N Y 38. Asaresult of defendant’s breach of his duty to disclose, plaintiff has suffered damages, N N I« including emotional distress. The fu)l nature and extent of such damages is unknown to plaintiff and TN leave is requested to amend this claim to conform to proof at time of trial. [ [ 39. Defendant is estopped from pleading as a defense the statute of limitations, because, after plaintiff disclosed her concemns with being infected with herpes by defendant, defendant made the fraudulent promises set forth in paragraphs 6 through 12 above thereby inducing plaintiff not to take any lega] action prior to the running of the statute of limitations. WHEREFORE, plaintiff prays for judgment as hereinafter set forth. 111 COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE TRUST, FRAUD, NEGLIGENCE AND BATTERY -7- JUL. 1S 2184as3 14:18 4154642012 PRGE.11 /87/15/2083 14:83 4154642812 BUELL BERNER PAGE 12 \\‘ . — SIXTH CAUSE OF ACTION (Fraud-Herpes Infection) N 40. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1 W through 12 hereof. | b 41. Defendant’s denjal of being infected with herpes when plaintiff asked defendant if he Lt had any STD was false in that defendant at that time was infected with herpes. O 42. At the time defendant made such false representation, defendant knew hé was infected 3 with herpes, and that such representation was false. 0 43. Defendant made such false representations with the intent to defraud plaintiff so that she O would engage in sexual intercourse with him. O — 44, Plaintiff was unaware of the falsity of such representations and relied on such false = — representations as a condition of having sexual intercourse with defendant. — WD 45. As aresult of defendant’s fraud, plaintiff has suffered damages, including emotional — distress. The full nature and extent of such damages is unknown to plaintiff and leave is requested — to amend this claim to conform to proof at time of trial. — 46. Defendant is estopped from pleading as a defense the statute of limitations, because after N — plaintiff disclosed her concemns with being infected with herpes by defendant, defendant made the ot N fraudulent promises set forth in paragraphs 6 through 12 above thereby inducing plaintiff not to take 0 — any legal action prior to the running of the statute of limitations. WY — 47. In doing the acts alleged herein, defendant acted with fraud, oppression and malice, and 3] O plaintiff is entitled to punitive damages. [\ S] = WHEREFORE, plaintiff prays for judgment as hereinafter set forth. ™o N SEVENTH CAUSE OF ACTION [ &) W (Battery-Herpes Infection) | o] kA 48. Plaintiff repeats and incorporates herein by reference as if fully set forth paragraphs 1 N ) Wi B through 12 hereof. N | 49. Bynegligently and/or fraudulently failing to disclose his infection with herpes, defendant 1) N engaged in offensive contact with plaintiff without her informed consent. 00 1% COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE TRUST, FRAUD, NEGLIGENCE AND BATTERY -8- Jui. 15 2883 14:18 » 4154642812 PRAGE. 12 '7@7/15/2@@3 14:83 4154642212 BUELL BERNER PAGE 13 7 Py 50. As aproximate result of defendant’s intentional conduct, plaintiff has suffered damages, including emotional distress. The full nature and extent of such damages is unknown to plaintiff and e leave is requested to amend this claim to conform to proof at time of trial. L 51. Defendant is estopped from pleading as a defense the statute of limitations, because after plaintiff disclosed her concemns with being infected with herpes by defendant, deféndant made the T fraudulent promises set forth in paragraphs 6 through 12 above thereby inducing plaintiff not to take N any legal action prior to the running of the statute of limjtations. 52. In doing the acts alleged herein, said defendant acted with fraud, oppression and malice, I - and plaintiff is entitled to punitive damages. | LYo WHEREFORE, plaintiff prays judgment as follows: O ON THE FIRST, SECOND, FOURTH, FIFTH, SIXTH AND SEVENTH CAUSES OF e N~ ACTION: s 1. Damages according to proof at time of trial b bW ON THE THIRD CAUSE OF ACTION: e 1. That defendant be declared the constructive trustee of one-half of the Berkeley Home, and ea that he be compelled to transfer legal title and the possession of such property to plaintiff. Y e ON THE FOURTH, SIXTH AND SEVENTH CAUSE OF ACTION: s N 1. Punitive damages. | ON ALL CAUSES OF ACTION: = OO 1. Costs of suit; O NN 2. Prejudgment interest; = 3. Attomeys fees; and LN 4. For all such other relief as the court deems just and appropriate. N b NN DATED: July 15, 2003 LAW OFFICES OF E. RICK BUELL, II W D NN NN E. Rick Buell, II W Attorney for Plaintiff GWEN R. SYKES COMPLAINT FOR BREACH OF CONTRACT, CONSTRUCTIVE TRUST, FRAUD, NEGLIGENCE ‘AND BATTERY -9- Jut. 15 2883 14:18 4154642812 PAGE.13