Defendants’ Demurrers to Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAT LUNDVALL (Pro Hac Vice Application Forthcoming) JESSICA WOELFEL (State Bar No. 226939) MCDONALD CARANO WILSON, LLP 2300 West Sahara Avenue, Suite 1000 Las Vegas, Nevada 89102 Telephone Number: (702) 873-4100 Facsimile Number: (702) 873-9966 Email: [email protected][email protected]MONTY A. McINTYRE (State Bar No. 95796) 501 West Broadway, Suite 1330 San Diego, California 92101 Telephone: (619) 990-4312 Email: [email protected]Attorneys for Defendants Integrated Sports Marketing, Inc. and David R. Miller THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO BREES DREAM FOUNDATION, Plaintiff, vs. INTEGRATED SPORTS MARKETING, INC. a California corporation; and DAVID R. MILLER, an individual, Defendants. Case No. 37-2012-00087492-CU-BC-CTL DEFENDANTS INTEGRATED SPORTS MARKETING, INC’S. and DAVID R. MILLER’S: (1) NOTICE OF DEMURRERS AND DEMURRERS TO COMPLAINT, and (2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPAINT IMAGED FILE Date: April 19, 2013, 2013 Time: 11:00 a.m. Dept.: C-70
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Defendants’ Demurrers to Complaint
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PAT LUNDVALL (Pro Hac Vice Application Forthcoming) JESSICA WOELFEL (State Bar No. 226939) MCDONALD CARANO WILSON, LLP 2300 West Sahara Avenue, Suite 1000 Las Vegas, Nevada 89102 Telephone Number: (702) 873-4100 Facsimile Number: (702) 873-9966 Email: [email protected][email protected] MONTY A. McINTYRE (State Bar No. 95796) 501 West Broadway, Suite 1330 San Diego, California 92101 Telephone: (619) 990-4312 Email: [email protected] Attorneys for Defendants Integrated Sports Marketing, Inc. and David R. Miller
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
BREES DREAM FOUNDATION, Plaintiff, vs. INTEGRATED SPORTS MARKETING, INC. a California corporation; and DAVID R. MILLER, an individual, Defendants.
Case No. 37-2012-00087492-CU-BC-CTL DEFENDANTS INTEGRATED SPORTS MARKETING, INC’S. and DAVID R. MILLER’S:
(1) NOTICE OF DEMURRERS AND DEMURRERS TO COMPLAINT, and (2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPAINT
POINTS AND AUTHORITIES ........................................................................................................................................ 3
Brees’ First Cause of Action, for Breach of Contract, Fails to State a Valid Claim of Action Against Both Miller and ISM ................................................................................................................................. 10
Brees’ Second Cause of Action, for “Breach of the Implied Covenant of Good Faith and Fair Dealing,” Fails to State A Claim Against Both Miller and ISM ................................................................................. 12
Brees’ Third Cause of Action, for “Breach of Fiduciary Duty,” Fails to State A Claim Against Both Miller and ISM .................................................................................................................................................. 13
Brees’ Fourth Cause of Action, for “Conversion,” Fails to State a Claim Against Both Miller and ISM .......... 15
Brees’ Fifth Cause of Action, for “Accounting,” Fails to State a Claim Against Both Miller and ISM .............. 16
Brees’ Sixth Cause of Action, for “Constructive Trust,” Fails to State a Claim Against Both Miller and ISM .. 17
Brees’ Seventh Cause of Action, for “Unlawful and Unfair Business Practices in Violation of California Business & Professions Code Sections 17200 et. seq.,” Fails to State a Claim Against Miller and ISM .................................................................................................................................................. 19
Brees Fails To Allege Unlawful Conduct. ...................................................................................................... 19
Brees Fails To Allege Any “Unfair” Business Practice ................................................................................... 21
Brees Does Not Allege Any Fraudulent Conduct ........................................................................................... 22
Brees’ Eighth Cause of Action, for “Declaratory Judgment,” Fails to State a Claim Against Both Miller and ISM .................................................................................................................................................. 22
TO THE EXTENT BREES RELIES UPON VAGUE ALLEGATIONS OF CONDUCT BY “DEFENDANTS,” BREES’ ALLEGATIONS ARE FATALLY UNCERTAIN ............................................................................................................. 23
THE DEMURRERS SHOULD BE SUSTAINED WITHOUT LEAVE TO AMEND ........................................................ 25
Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544 .................................................................................................... 13
Campbell v. PricewaterhouseCoopers, CIV S-06-2376LKK/GGH, 2008 WL 3836972 (E.D. Cal. Aug. 14, 2008) ....... 21
Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal. App. 3d 1371 ................................................................. 17
Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342 .................................. 16
Chabner v. United of Omaha Life Ins. Co. (9th Cir. 2000) 225 F.3d 1042 ................................................................... 23
Communist Party v. 522 Valencia, Inc. (1995) 35 Cal. App. 4th 980 ........................................................................... 21
Embarcadero Mun. Impr. Dist. v. County of Santa Barbara (2001) 88 Cal. App. 4th 781 ............................................ 21
Estate of Archer (1987) 193 Cal. App. 3d 238 ............................................................................................................. 13
Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654 ................................................................................................. 16
Gordon Bldg. Corp. v. Gibraltar Sav. & Loan Ass'n (1966) 247 Cal. App. 2d 1 ........................................................... 15
Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal. 4th 317, 327 ................................................................................................. 17
Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239 .............................................................................................. 13
Vater v. Glenn (1958) 49 Cal.2d 815 ........................................................................................................................... 29
Vu v. California Commerce Club, Inc. (1997) 58 Cal. App. 4th 229 ............................................................................. 19
Cal. Bus. & Prof. Code § 17510.5 ................................................................................................................................ 24
Cal. Bus. & Prof. Code § 17510.8 .......................................................................................................................... 18, 24
Cal. Code Civ. Proc. § 425.10(a) ................................................................................................................................. 13
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Defendants’ Demurrers to Complaint
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TO PLAINTIFF AND ITS ATTORNEY OF RECORD:
PLEASE TAKE NOTICE that on April 19, 2013 at 11:00 a.m. in Department C-70
of the above-referenced court, located at 330 West Broadway, San Diego, California
92101, defendants INTEGRATED SPORTS MARKETING, INC. (“ISM”) and DAVID R.
MILLER (“Miller”) will bring for hearing its demurrers to plaintiff’s Complaint on the
grounds set forth below.
DEMURRERS
The Defendants demur to plaintiff’s Complaint on each of the following grounds:
First Cause of Action: “Breach of Contract”
1. The first cause of action fails to state facts sufficient to constitute a cause
of action. C.C.P. § 430.10(e).
2. The first cause of action is uncertain. C.C.P. § 430.10(f).
Second Cause of Action: “Breach of the Implied Covenant of Good Faith and Fair
Dealing”
1. The second cause of action fails to state facts sufficient to constitute a
cause of action. C.C.P. § 430.10(e).
2. The second cause of action is uncertain. C.C.P. § 430.10(f).
Third Cause of Action: “Breach of Fiduciary Duty”
1. The third cause of action fails to state facts sufficient to constitute a cause
of action. C.C.P. § 430.10(e).
2. The third cause of action is uncertain. C.C.P. § 430.10(f).
Fourth Cause of Action: “Conversion”
1. The fourth cause of action fails to state facts sufficient to constitute a
cause of action. C.C.P. § 430.10(e).
2. The fourth cause of action is uncertain. C.C.P. § 430.10(f).
Fifth Cause of Action: “Accounting”
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POINTS AND AUTHORITIES
I. INTRODUCTION
ISM is a corporation formed by Miller in 1999 that owns and has been
successfully producing a celebrity golf tournament in San Diego to benefit local charities
every year since 1999. The tournament was initially called the San Diego Celebrity
Classic golf tournament and was renamed the Celebrity Championship (identified herein
as “Tournament”). The Tournament quickly became one of the most respected celebrity
golf tournaments in the country. Over the past fourteen years, it has raised over a
million dollars for San Diego charities including Rady Children’s Hospital, San Diego
Armed Services, YMCA, Junior Seau Foundation, Friends of Scott Foundation, the MS
Society Pacific South Coast Chapter, and the Drew Brees Foundation. The
Tournament also hosts wounded warriors through its Wounded Warriors Program and
thousands of active military members and their families on its Military Appreciation Day.
Former San Diego Chargers quarterback Stan Humphries was the celebrity host
of the Tournament from 1999 through 2008. In 2009 Mr. Humphries was unable to
continue as host of the Tournament and there was no celebrity host that year. ISM then
asked New Orleans’s Saints quarterback Drew Brees to become the celebrity host for
the 2010 Tournament. Mr. Brees agreed. ISM hired Mr. Brees to host its Tournament.
Specifically, in 2009, ISM and the Brees Dream Foundation (“Brees”) entered
into agreements which, in relevant part, allowed ISM to use Mr. Brees’ name and
likeness, and required Mr. Brees to attend the Tournament and perform certain
functions to promote the Tournament. In exchange ISM guaranteed that Brees would
receive charity revenue in the six figures from the Tournament. In 2009, Brees signed a
one-year agreement with ISM for the 2010 Tournament. In 2010, Brees signed a four-
year contract with ISM for the Tournament for the years 2011-2014. The two contracts
are referred to herein as the “Agreements.” At all times, ISM bore the risk of all financial
commitments entered into on behalf of the Tournament.
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Each year ISM exceeded its financial obligations to Brees under the Agreements.
For the 2010 Tournament, ISM contractually guaranteed that it would pay $100,000 to
Brees, and actually paid Brees over $135,000. For the 2011 Tournament, ISM
contractually guaranteed that it would pay $110,000 to Brees, and paid over $189,000.
And in 2012, ISM contractually guaranteed it would pay $125,000 and successfully
generated revenue of approximately $321,000 for Brees.
While ISM repeatedly exceeded its contractual obligations, Mr. Brees
repeatedly failed to perform his agreed-upon duties. For example, Mr. Brees failed to
attend in any year the press conference at the Rady Children’s Hospital kicking off the
Tournament; failed to participate in a single round of golf to promote the Tournament in
any year; failed to show up at the Celebrity Poker Championship; and refused or failed
to show up at scheduled sponsor appearances, among many other things.1
Despite ISM’s consistent success in generating ever increasing charitable
revenues for Brees, in 2012 Brees wrongfully and ineffectively attempted to terminate its
agreement and wrongfully sued ISM and Miller alleging they had breached the
contracts. Notably, Miller has never been a party to the contacts and ISM has at all
times met its obligations under the Agreements. The only party who has breached the
Agreements is Brees.
The Complaint filed by Brees alleges numerous claims against ISM, and ISM’s
president, Miller, connected to the alleged breach of the Agreements which governed
the Tournament during the years 2010, 2011 and 2012. The claims against Miller lack
any merit whatsoever because he was never individually a party to the Agreements. As
to ISM, Brees has wrongfully and ineffectively attempted to terminate the Agreements
and has alleged eight causes of action against both ISM and Miller, for: (1) Breach of
1 Given Brees’ breach and repudiation of his future obligations, ISM has now entered into an agreement with NFL Hall of Fame Running Back Marshall Faulk to act as the Tournament’s celebrity host.
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Contract, (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3)
Unlawful and Unfair Business Practices in Violation of California Business &
Professions Code Section 17200; and (8) Declaratory Relief. None of these eight
causes of action seek a valid claim against either ISM or Miller.
With respect to the contract claims, Brees has failed to attach a copy of the
contract or recite the material terms of the Agreements verbatim, as is required under
California law and its claims thus fail against both ISM and Miller. Had Brees attached
the contract, the Court would see that Miller is not a party to the contracts with Brees,
and that the contract provisions do not support Brees’ claims against ISM. Similarly,
each of the remaining claims arising under the Agreements – those for breach of the
implied covenant of good faith and fair dealing, accounting, and declaratory relief – are
thus impermissibly alleged.
Brees also alleges a claim for breach of a fiduciary duty under Business and
Professions Code section 17510.8. Brees alleges that this section creates a fiduciary
obligation to Brees on behalf of ISM and Miller since they were allegedly soliciting
donations on behalf of a charitable foundation. Simply put, Brees misreads the statute.
Section 17510.8 creates a fiduciary relationship between a charity (or person soliciting
on behalf of a charity) and a donor; it does not create a fiduciary relationship between a
charity and a person or entity making solicitations on its behalf. As a result, Brees’
breach of fiduciary duty, constructive trust, and section 17200 claims, each of which are
predicated on Brees’ misreading of section 17510.8, fail to state a claim.
Brees’ conversion claims also fail as a matter of law because it has not and is
unable to allege a definite sum allegedly converted.
In sum, Brees has alleged no valid theory under which Miller should be
individually named in this suit, and the claims against ISM as pled fail to state a valid
cause of action. Each of the demurrers should thus be sustained without leave to
amend.
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II. FACTUAL ALLEGATIONS MADE BY BREES IN COMPLAINT
On December 12, 2012, Brees filed its Complaint against ISM and Miller. ISM
and Miller were served with the Complaint on December 21, 2012.
While the Complaint is lengthy, it is conspicuously short on facts demonstrating
any valid claims against Miller. Indeed, the relevant allegations in the Complaint make
clear that the Agreements which form the entire basis of the Complaint were solely
between Brees and ISM. No allegations are made that Miller signed the relevant
agreements in his individual capacity, guaranteed the agreements, or made any oral
agreements with Plaintiff. Nor does the Complaint raise alter ego allegations.
With respect to ISM, the claims raised against it are legally insufficient. As an
initial matter, the Complaint fails to attach a copy of the relevant Agreements or recite
their terms verbatim. The breach of contract-based claims thus fails to state a valid
claim. The remainder of the claims are also legally insufficient, and are based on a
fundamental misreading by Brees of the applicable law.
Finally, the allegations of the Complaint are fatally uncertain since Plaintiff
impermissibly lumps both ISM and Miller together throughout the course of the
Complaint. The relevant factual allegations in the Complaint are as follows:
The 2009 Contribution Agreement and 2010 Championship
It is alleged: By written agreement dated November 17, 2009 (the “2009
Contribution Agreement”), “the Foundation contracted with ISM for ISM to serve as the
producer and operator of the 2010 Championship charity golf tournament and to raise
funds on behalf of the Foundation.” (Complaint at ¶ 24, emphasis added.) The 2009
Contribution Agreement also required ISM to keep appropriate, separate and detailed
book of accounts and records relating to the Championship charity golf tournament. (Id.
at ¶ 26, emphasis added).
The 2010 Championship charity golf tournament was held at the Morgan Run
Country Club in Rancho Santa Fe, California between May 20, 2010 and May 23, 2010.
(Id. at ¶ 27.) This tournament was produced and operated by ISM. (Id.) Despite the
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fact that the Complaint is clear that Brees contracts were with ISM, Brees nonetheless
alleges that it cannot determine at this time whether “Defendants” fulfilled their
obligations under the 2009 Contribution Agreement relating to the 2010 Championship
since “Defendants” have never provided Brees with a full accounting for the charity
event. (Id. at ¶ 29.)
2010 Contribution Agreement and 2011 Championship
It is alleged: By written agreement dated December 28, 2010 (the “2010
Contribution Agreement”), Brees contracted with ISM for ISM to serve as the producer
and operator of the championship charity golf tournaments for the years 2011 through
2014 and to raise and collect funds on behalf of the Foundation.” (Complaint at ¶ 30,
emphasis added.) “The 2010 Contribution Agreement is a binding contract between the
Foundation and ISM.” (Complaint at ¶ 51, emphasis added.) The 2010 Contribution
Agreement also required ISM to keep appropriate, separate and detailed book of
accounts and records relating to the Championship charity golf tournament. (Id. at ¶¶
32, 53.)
The 2011 Championship was held at the Morgan Run Country Club in Rancho
Santa Fe, California between May 19, 2011 and May 22, 2011. (Id. at ¶ 33.) This
tournament was produced and operated by ISM. (Id.) Brees alleges that it cannot
determine at this time whether “Defendants” fulfilled their obligations under the 2010
Contribution Agreement relating to the 2011 Championship since “Defendants” have
never provided Brees with a full accounting for the charity event. (Id. at ¶ 35.)
2012 Championship and Alleged Breaches of the 2010 Contribution
Agreement
In 2012, the third charity golf tournament was held at the La Costa Resort & Spa
(the “Resort”). (Complaint at ¶ 36.) The tournament was again produced and operated
by ISM. (Id.) It is alleged: “ISM breached several terms of the 2010 Contribution
Agreement in producing and operating the 2012 Championship on behalf of the
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Foundation,” but the terms of the Agreement that were allegedly breached are not
identified. (Complaint at ¶ 38.) Specifically, Brees alleges the following:
“ISM secured reduced hotel room rates” at the Resort during the course of the
2012 Championship. (Complaint at ¶ 39, emphasis added.)
“ISM charged certain – if not all – 2012 Championship participants and
guests an amount greater than the rate that ISM negotiated with the Resort.”
(Id. at ¶ 40, emphasis added.)
“ISM solely retained as profits the monies collected in excess of the rate
negotiated with the Resort.” (Id. at ¶ 41, emphasis added.)
“ISM never submitted to the Foundation for its written approval ISM’s
intention to upsell hotel rooms at the Resort. . . . Instead ISM proceeded to do
so without ever advising the Foundation.” (Id. at ¶ 42, emphasis added.)
“ISM made representations and commitments to pay certain ‘appearance
fees’ to celebrities attending the 2012 Championship and to pay monetary
prized to participants who won certain events during the 2012 Championship
as an inducement for participating.” (Id. at ¶ 45, emphasis added.)
“ISM failed to report all ticketing revenue received and held in trust for the
benefit of the Foundation and charged vendors and additional fee for the
ability to appear onsite during the 2012 Championship.” (Id. at ¶ 46.)
No such allegations of breach are made against Miller. Nor are specific contract
provisions demonstrating that Miller is a party to the Agreement recited.
Brees Allegedly Terminates the 2010 Contribution Agreement
It is alleged: Upon learning of ISM’s alleged misappropriation of charity
revenues, Brees claims it lost confidence in defendants. (Complaint at ¶ 48.) On May
21, 2012, “the Foundation terminated its 2010 Contribution Agreement with ISM.” (Id. at
¶ 49, emphasis added.) Brees then filed this lawsuit against ISM and Miller despite the
fact that the no allegations provide that Miller was ever a party to the contracts with
Brees. (See e.g. Complaint at ¶¶ 30, 33, 49, 51.)
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Because Miller is improperly named as an individual plaintiff, the causes of
action alleged against him must be dismissed. Moreover, the claims against ISM are
either improperly pled or legally insufficient.
III. ARGUMENT
It is well settled that a complaint must set forth a “statement of the facts
constituting the cause of action, in ordinary and concise language.” Cal. Code Civ.
Proc. § 425.10(a). While California pleading requirements are liberal, a complaint must
at a minimum “apprise[] the adversary of the factual basis of the claim.” 4 Witkin,
California Procedure, § 339, p. 438 (4th ed. 1997); see also Estate of Archer (1987) 193
Cal. App. 3d 238, 245; Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544 (“Factual
allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”).
Pleading mere legal conclusions is insufficient. Lesperance v. North American Aviation,
Inc. (1963) 217 Cal. App. 2d 336, 343 (“It is elementary that a pleading must allege
facts and not conclusions . . .”) (quotation omitted); Tarmann v. State Farm Mut. Auto.
Ins. Co. (1991) 2 Cal. App. 4th 153, 156 (1991) (a demurrer assumes the truth of the
material factual allegations in the complaint, but not the contentions, deductions, or
conclusions of fact or law alleged therein).
With respect to claims premised upon a contract, a complaint must either: (a) set
forth the terms of the contract verbatim, or (b) attach a copy of the contract and
incorporate it by reference. Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th
299, 307 (“If the action is based on alleged breach of a written contract, the terms must
be set out verbatim in the body of the complaint or a copy of the written agreement must
be attached and incorporated by reference.”). The failure to identify the material terms
of a contract renders the cause of action fatally defective. Twaite v. Allstate Ins. Co.
(1989) 216 Cal. App. 3d 239, 252-253; Otworth v. Southern Pacific Transp. Co. (1985)
166 Cal. App. 3d 452, 459; Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50,
59.
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Here, the demurrers to each and every claim alleged against ISM and Miller must
be sustained without leave to amend because they are improperly pled, are fatally
uncertain, and/or fail to state a valid cause of action.
A. Brees’ First Cause of Action, for Breach of Contract, Fails to State a
Valid Claim of Action Against Both Miller and ISM
Brees’ first cause of action, for “breach of contract” fails for several reasons: (1)
Brees has not attached the contract or set forth verbatim all material terms of the
Agreements, and (2) the allegations which are provided unequivocally demonstrate that
Miller was not a party to the Agreements.
The elements of a cause of action for breach of contract are (1) the existence of
the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's
breach, and (4) the resulting damages to the plaintiff. Oasis West Realty, LLC v.
Goldman (2011) 51 Cal. 4th 811, 821. To state a cause of action for breach of written
contract, a complaint must also set forth the terms of the contract verbatim or attach a
copy of the contract and incorporate it by reference. Harris, 74 Cal. App. 4th at 307;
Twaite, 216 Cal. App. 3d at 252-253 (failure to identify material terms of a contract
renders the cause of action fatally defective); Otworth v. Southern Pacific Transp. Co.
(1985) 166 Cal. App. 3d 452, 459; Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d
50, 59.
Here, Brees’ breach of contract allegations must be dismissed against both Miller
and ISM because it has failed to attach a copy of the relevant agreements to the
Complaint, or recite verbatim the material provisions of the Agreements. Harris, 74 Cal.
App. 4th at 307; Twaite, 216 Cal. App. 3d at 252-253. Requiring Brees to attach the
Agreements or recite its terms verbatim is not a trivial matter, but will demonstrate that
Miller never entered into a contract, either oral or written, in his individual capacity. See
Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 459–460 (To
state a cause of action for breach of contract, the plaintiff must indicate whether the
contract is written, oral, or implied. If it is written, the terms can be set out verbatim in
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the body of the complaint or a written instrument must be attached to the pleading and
incorporated by reference.); Moya v. Northrup (1970) 10 Cal. App. 3d 276, 281 (If a
cause of action rests upon an express contract, the pleader must specify whether it is
written or oral.) Requiring Brees to attach the contract or recite its terms verbatim will
also demonstrate that neither Miller nor ISM breached a material term. As currently
pled, defendants have no idea which contract provisions were allegedly breached.
In addition, the allegations unequivocally demonstrate that no breach of contract
claim exists against Miller. Brees has wholly failed to allege that Miller is a party to the
2009 or 2010 Contribution Agreements. (See Complaint at ¶ 51.) Indeed, the
Complaint makes abundantly clear that Brees’ contract was solely with ISM. (See
Complaint at ¶ 51 (“The 2010 Contribution Agreement is a binding contract between
the Foundation and ISM.” (emphasis added)).) Because Miller is not a party to the
relevant contracts, his demurrer to this cause of action should be sustained without
leave to amend. See Oppenheimer v. Gen. Cable Corp. (1956) 143 Cal. App. 2d 293,
297 (no right to maintain action against a defendant for promises made in a contract
where defendant is not a party to the contract); Seymour v. Christiansen (1991) 235
Cal. App. 3d 1168, 1172 (sustaining demurrer on grounds that the individual defendants
cannot be liable because they were not parties to the contract). Gordon Bldg. Corp. v.
Gibraltar Sav. & Loan Ass'n (1966) 247 Cal. App. 2d 1, 6 (A complaint fails to state a
cause of action for breach of contract if it fails to allege that plaintiff is a party to the
contract and the performance of conditions precedent.)
Because Brees has failed to attach a copy of the contract or identify the contracts
terms verbatim, and because the information Brees has provided in the Complaint
leaves no doubt that Miller was not a party to the relevant contracts, the demurrers to
the breach of contract cause of action should be sustained, and both demurrer should
be sustained without leave to amend.
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B. Brees’ Second Cause of Action, for “Breach of the Implied Covenant of
Good Faith and Fair Dealing,” Fails to State A Claim Against Both Miller
and ISM
Brees’ second cause of action alleges a breach of the implied covenant of good
faith and fair dealing. (Complaint at ¶¶ 59-62.) The existence of a valid contract
between the parties is a necessary prerequisite to a claim for breach of the implied
covenant of good faith and fair dealing.2 See Carma Developers (Cal.), Inc. v.
Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371 (there can be no
breach of the duty of good faith and fair dealing in the absence of a contract); Racine &
Laramie, Ltd. v. Dep’t of Parks & Rec. (1992) 11 Cal. App. 4th 1026, 1031 (“the implied
covenant of good faith and fair dealing rests upon the existence of some specific
contractual obligation.”); Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 683-84.
As discussed above Brees has failed to adequately allege the existence of a
contract between itself and Miller, and has only alleged a contract between it and ISM.
See supra, Section III (A); see also Complaint at ¶ 51 (“The 2010 Contribution
Agreement is a binding contract between the Foundation and ISM”). As a result, the
claim for breach of the implied covenant of good faith and fair dealing against Miller
must fail. Likewise, since Brees failed to attach a copy of the contract or assert its
terms verbatim, the breach of contract claim against ISM fails and the breach of implied
covenant claim against ISM must also fail.
In addition, the breach of implied covenant claim fails because its allegations are
a mere restatement of the breach of contract claim. (See Complaint at ¶ 60.) “If the
allegations do not go beyond the statement of a mere contract breach and, relying on
the same alleged acts, simply seek the same damages or other relief already claimed in
2 At present, the court recognizes only one exception to this general rule: tort remedies are available for a breach of the covenant in cases involving insurance policies. See Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43; Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 937-941.
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a companion contract cause of action, they may be disregarded as superfluous as no
additional claim is actually stated.” Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990)
222 Cal. App. 3d 1371, 1395; see also Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal. 4th 317,
327, 352-53 (“[W]here breach of an actual term is alleged, a separate implied covenant
claim, based on the same breach, is superfluous.”); Bionghi v. Metro Water Dist. of S.
California (1999) 70 Cal. App. 4th 1358, 1370 (because the “claim of breach of the
implied covenant relies on the same acts, and seeks the same damages, as its claim for
breach of contract[,]” the cause of action for breach of the implied covenant was
superfluous and was properly disregarded.). Here, the acts relied upon in seeking
damages for breach of the implied covenant are the same as those supporting Brees’
breach of contract claim. (Complaint at ¶ 60.) No cause of action has been properly
alleged and the demurrers should be sustained without leave to amend.
C. Brees’ Third Cause of Action, for “Breach of Fiduciary Duty,” Fails to
State A Claim Against Both Miller and ISM
Brees’ third cause of action alleges that Miller and ISM, as a person or entity
allegedly soliciting donations on behalf of the Foundation, breached a fiduciary duty
owed by them to the Foundation. (Complaint at ¶ 65.) In so alleging, Brees relies upon
Business & Professions Code section 17510.8, of which Brees has quoted only a short
and distorted portion. (See Complaint at ¶ 64.) Brees’ attempt to impose a fiduciary
obligation upon defendants by way of Section 17510.8 is wholly misguided because the
fiduciary obligation created by 17510.8 is not between a charity and a person soliciting
donations on behalf of a charity, but rather is between the charity or persons soliciting
on behalf of a charity (i.e., Brees or Miller) and the donor (a third party):
Notwithstanding any other provision of this article, there exists a fiduciary relationship between a charity or any person soliciting on behalf of a charity, and the person from whom a charitable contribution is being solicited. The acceptance of charitable contributions by a charity or any person soliciting on behalf of a charity establishes a charitable trust and a duty on the part of the charity and the person soliciting on behalf of the charity to use those charitable
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contributions for the declared charitable purposes for which they are sought. This section is declarative of existing trust law principles.
Cal. Bus. & Prof. Code § 17510.8 (West) (emphasis added).
Section 17510.8 makes no mention of any “special relationship” that exists
between the charitable organization and a person acting on its behalf. Id. Instead, it
clearly creates duties on behalf of charities and soliciting parties to donors. Id.; see also
People v. Orange County Charitable Services (1999) 73 Cal. App. 4th 1054, 1075
(section 17510.8 makes “charities and solicitors fiduciaries of the donors and
establishing a charitable trust for donations accepted”) (emphasis added).
Under Section 17510.8, charities and soliciting parties must use contributions
received from donors for the declared charitable purpose. Cal. Bus. & Prof. Code §
17510.8. The creation of a constructive trust is thus protection to the donor (not the
charitable organization), that donated funds will be used as expected.3 Id.
A full reading of section 17510.8 makes clear that no fiduciary obligation is owed
by Miller or ISM to Brees (who is a charitable organization and not a donor) under this
section. Brees thus lacks standing to allege a breach of fiduciary duty by way of section
3 The legislative history confirms that Section 17510.8 was intended only to create a fiduciary duty between a charity or any person soliciting on its behalf and a donor:
LEGISLATIVE COUNSEL'S DIGEST
AB 3797, Katz. Charitable solicitations.
Existing law regulates the solicitation of charitable contributions by charities, as defined. This bill would establish a fiduciary relationship between a charity or any person soliciting on behalf of the charity and the person from whom a charitable contribution is being sought, as specified.
17510.8, and the demurrers to this cause of action should be sustained without leave to
amend.
D. Brees’ Fourth Cause of Action, for “Conversion,” Fails to State a Claim
Against Both Miller and ISM
Brees’ fourth cause of action alleges a claim for “conversion” on the grounds that,
under the 2010 Contribution Agreement, ISM was entrusted to collect charity revenue
on behalf of Brees and “Defendants” wrongfully converted such revenue and monies for
their own purposes. (Complaint at ¶¶ 71-73.) As a result, Brees alleges that it has
been “damaged in an amount that cannot be ascertained absent an accounting from
Defendants.” (Id. at ¶ 74.)
Conversion is the wrongful exercise of dominion over the property of another.
Plummer v. Day/Eisenberg, LLC (2010) 184 Cal. App. 4th 38, 45. The elements of a
conversion claim are: (1) the Brees’ ownership or right to possession of the property; (2)
the defendant's conversion by a wrongful act or disposition of property rights; and (3)
damages.” Id.; see also Burlesci v. Peterson (1998) 68 Cal. App. 4th 1062, 1066.
Money cannot be the subject of a cause of action for conversion unless there is a
specific, identifiable sum involved. PCO, Inc. v. Christiansen, Miller, Fink, Jacobs,
Glaser, Weil & Shapiro, LLP (2007) 150 Cal. App. 4th 384, 395-96 (“[A]ctions for the
conversion of money have not been permitted when the amount of money involved is
not a definite sum.” ); Vu v. California Commerce Club, Inc. (1997) 58 Cal. App. 4th 229,
231-32, 235 (allegations regarding “approximate” amount converted insufficient to state
cause of action); Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49
Cal. App. 4th 472, 485 (no conversion where money was allegedly misappropriated
“over time, in various sums without any indication that it was held in trust for” plaintiff).
Brees’ conversion claim is fatally defective because it does not allege an
identifiable or definite sum of money that Miller or ISM allegedly converted, and Brees
admits that it cannot presently allege a definite sum. (Complaint at ¶ 74.) Because
Brees cannot identify a definite sum of money converted by either ISM or Miller, the
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conversion allegations fail to state a cause of action and this claim must be dismissed.
PCO, Inc., 150 Cal. App. 4th at 395-96 (conversion claim failed because Brees could
only estimate the amount of money allegedly converted); Vu, 58 Cal. App. 4th at 231;
Software Design, 49 Cal. App. 4th at 485.
California law is clear that a conversion claim may not lie unless a definite sum of
money is identified. Because Brees cannot make such an allegation, the demurrers to
the conversion cause of action should be sustained without leave to amend.
E. Brees’ Fifth Cause of Action, for “Accounting,” Fails to State a Claim
Against Both Miller and ISM
Brees’ fifth cause of action seeks an accounting from “Defendants.” (Complaint
at ¶¶ 76-80.) A cause of action for an accounting requires a showing that a relationship
exists between the Brees and defendant that requires an accounting, and that some
balance is due the Brees that can only be ascertained by an accounting. Teselle v.
McLaughin (2009) 173 Cal. App. 4th 156, 179 .
With respect to Miller, Brees has failed to allege any relationship that supports a
request for an accounting. The Complaint is clear that Brees’ right to an accounting
arises under the 2010 Contribution Agreement – of which Miller is not a party.
(Complaint at ¶¶ 77-78.) Specifically, the Fifth Claim for relief alleges that “Under the
2010 Contribution Agreement, ISM . . . promised to keep available full, true and
accurate records and books of accounts showing all of its billings and collections.”
(Complaint at ¶ 77, emphasis added.) The Complaint lacks any allegation that Miller
had any such obligation under the Agreement, and indeed, Miller did not.4 (Id.)
Because Brees does not allege a relationship between it and Miller that requires an
4 Nor does the Complaint identify verbatim the provision of the contract that allegedly supports this obligation, as required when alleging a breach of a contract provision. See Section A, supra.
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accounting, the Miller’s demurrer to the fifth cause of action should be sustained without
leave to amend.
With respect to ISM, the Complaint fails to attach a copy of the Agreements or
recite verbatim any provision of the Agreements which would require an accounting.
Accordingly, it is unclear from the Complaint whether or not a relationship requiring an
accounting exists, and ISM’s demurrer to this cause of action should also be sustained.
F. Brees’ Sixth Cause of Action, for “Constructive Trust,” Fails to State a
Claim Against Both Miller and ISM
Brees’ sixth cause of action seeks the equitable remedy of a constructive trust as
a result of “Defendants” conversion of charity revenue. (Complaint at ¶ 83-85.) “A
constructive trust is an involuntary equitable trust created by operation of law as a
remedy to compel the transfer of property from the person wrongfully holding it to the
rightful owner.” Communist Party v. 522 Valencia, Inc. (1995) 35 Cal. App. 4th 980, 990
. A constructive trust may only be imposed where the following three conditions are
satisfied: (1) the existence of a res (property or some interest in property); (2) the right
of a complaining party to that res; and (3) some wrongful acquisition or detention of the
res by another party who is not entitled to it.” Id. A constructive trust is not an
independent cause of action, but only may be sought as a remedy on other underlying
claims when the foregoing conditions exist. Embarcadero Mun. Impr. Dist. v. County of
Santa Barbara (2001) 88 Cal. App. 4th 781, 793.
As an initial matter, Brees’ request for a constructive trust against Miller and ISM
must be dismissed because Brees has failed to assert a valid cause of action against
them supporting such a remedy. See Embarcadero, 88 Cal. App. 4th at 793. Since
“constructive trust” is merely a remedy, it must be predicated upon a valid claim. Id.;
Campbell v. PricewaterhouseCoopers, CIV S-06-2376LKK/GGH, 2008 WL 3836972
(E.D. Cal. Aug. 14, 2008) (assertion of constructive trust as a remedy requires
allegation of “fraud, breach of fiduciary duty, breach of promise to buy property for
Brees, or repudiation of [an] unenforceable express trust.”). As discussed above no
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valid claim of breach of fiduciary duty is alleged against Miller or ISM which supports the
imposition of a constructive trust. Nor is a valid claim for conversion alleged which
would support a constructive trust because Brees cannot identify a sum certain that was
allegedly converted. See supra at Sections III(C) and (D). The inquiry should end
here.
Notwithstanding the foregoing, the Complaint also fails to allege the three
preliminary requirements for the imposition of a constructive trust. Communist Party, 35
Cal. App. at 990. For example, with respect to Miller, the Complaint does not allege a
wrongful acquisition or detention of Brees’ property by Miller in his individual capacity.
Instead, the Complaint only alleges that ISM – not Miller – collected the charity revenue
from the 2012 Championship pursuant to the terms of the 2010 Contribution Agreement.
(Complaint at ¶ 41.) As a result, a constructive trust cannot be an appropriate remedy
as to Miller. Communist Party, 35 Cal. App. 4th at 991, citing Pacific Lumber Co. v.
Superior Court, 226 Cal.App.3d at pp. 377–378 (“A constructive trust cannot exist
unless there is evidence that property has been wrongfully acquired or detained by a
person not entitled to its possession.”)
With respect to ISM, the Complaint has not adequately alleged that ISM
wrongfully collected revenue it was not entitled to – and Brees has failed to identify the
contract provisions that form the basis of its claim that money collected by ISM allegedly
belonged to Brees. (See Complaint at 82-83.)
Because no underlying breach of fiduciary duty or conversion claim supports the
remedy of a constructive trust, the demurrers by Miller and ISM to Brees’ constructive
trust cause of action should be sustained without leave to amend.
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G. Brees’ Seventh Cause of Action, for “Unlawful and Unfair Business
Practices in Violation of California Business & Professions Code
Sections 17200 et. seq.,” Fails to State a Claim Against Miller and ISM
Brees’ seventh cause of action is for violation of California’s Business &
Professions Code section 17200 (“UCL”), which prohibits unlawful, fraudulent, or unfair
business practices. Bus. & Prof. Code § 17200. To state a cause of action under the
UCL, a Brees must allege facts satisfying at least one prong of the statute. Brees fails to
meet this burden.
1. Brees Fails To Allege Unlawful Conduct.
A “violation of another law is a predicate for stating a cause of action under the
UCL's unlawful prong.” Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal. App. 4th
1544 . “In effect, the UCL borrows violations of other laws...and makes those unlawful
practices actionable under the UCL.” Lazar v. Hertz Corp. (1999) 69 Cal. App. 4th 1494,
1505. A claim for violation of the UCL stands or falls depending on the fate of
antecedent substantive causes of action. Krantz v. BT Visual Images (2001) 89 Cal.
App. 4th 164, 178. A court may not allow a plaintiff to “plead around an absolute bar to
relief simply by recasting the claim as one for unfair competition.” Chabner v. United of
Here, Brees’ UCL allegations are predicated on the alleged violations of two
statutes: Business and Professions Code Sections 17510.5 and 17510.8. (See
Complaint at ¶¶ 88-91.) Neither statute supports a UCL violation.
First, the Complaint alleges a violation of Section 17510.5. While Section
17510.5 may provide an arguable underlying statutory violation on behalf of ISM, it
cannot do so for Miller because Section 17510.5 applies only to organizations, not
individuals such as Miller:
(a) The financial records of a soliciting organization shall be maintained on the basis of generally accepted accounting principles as defined by the American Institute of Certified Public Accountants, the Governmental Accounting
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Standards Board, or the Financial Accounting Standards Board.
(b) The disclosure requirement of paragraph (7) of subdivision (a) of Section 17510.3 shall be based on the same accounting principles used to maintain the soliciting organization's financial records.
Cal. Bus. & Prof. Code § 17510.5 (West). Miller is not a soliciting organization, only an
individual who is a member of the organization. (Complaint at ¶ 19.) The plain
language of Section 17510.5 leaves no doubt that it does not apply to individuals
involved in the soliciting organization, but is a regulation on the soliciting organization
itself.5 Id. Accordingly, Section 17510.5 provides no support for a UCL claim against
Miller, and Miller’s demurrer to this cause of action should be sustained without leave to
amend on this basis alone.
Nor does Section 17510.8 support such a claim against either Miller and ISM. As
discussed above at Section III(C), 17510.8 does not create a fiduciary relationship
between defendants and Brees, and Brees thus lacks standing to assert a claim under
this section. See Cal. Bus. & Prof. Code § 17510.8; People v. Orange County
Charitable Services, 73 Cal. App. 4th at 1075. Rather, the only fiduciary obligation
created by Section 17510.8 is between the charitable organization (or person soliciting
on their behalf) and a donor. See Cal. Bus. & Prof. Code § 17510.8; People v. Orange
County Charitable Services, 73 Cal. App. 4th at 1075. Section 17510.8 cannot support
a claim for unlawful business conduct by either Miller or ISM and for this reason the
demurrers of Miller and ISM to this cause of action should be sustained without leave to
amend.
5 The legislative history also confirms that the accounting requirement is directed to the organization, not individuals. See CA B. An., S.B. 1262 Sen., 8/23/2004, California Bill Analysis, S.B. 1262 Sen., 8/23/2004.
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2. Brees Fails To Allege Any “Unfair” Business Practice.
“Unfair” conduct under Business and Professions Code has been defined as
conduct that “offends an established public policy or...is immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers.” Scripps Clinic v. Superior Court
(2003) 108 Cal. App. 4th 917, 939. When “determining whether the challenged conduct
is unfair within the meaning of the unfair competition law... courts may not apply purely
subjective notions of fairness.” Id. at 941. Rather, a plaintiff's claim under Section
17200, if based on a public policy, must be “tethered” to a specific constitutional,
statutory, or regulatory provision to find an objective basis for determining whether the
alleged conduct is unfair. See id. at 940.
Additionally, although “unfair business practice” is an intentionally broad term,
there must still be some business practice specifically pled. Motors, Inc. v. Times Mirror
Co. (1980) 102 Cal. App. 3d 735. While a business “practice” may be found based on
nothing more than a pattern of behavior pursued in the course of business, one-time
acts are insufficient to constitute a practice. Practice contemplates a “pattern of conduct,
ongoing . . . conduct, a pattern of behavior or a course of conduct.” State of California
ex rel Van de Kamp v. Texaco, Inc. (1988) 46 Cal. 3d 1147, 1170.
No unfair business practice has been alleged against Miller because the only
allegations of “unfair” or “unlawful” activity are the alleged violations of Business and
Professions Code Sections 17510.5 and 17510.8. As discuss above, neither of these
statutes apply to Miller.
With respect to ISM, as discussed above, Section 17510.8 does not apply to ISM
and cannot support a UCL claim. The alleged violation of Section 17510.5 also cannot
support a UCL claim since Brees fails to allege a pattern of conduct in violation of
17510.5, but merely alleges a one-time act of failing to adequately maintain financial
records for the 2012 Championship. (Complaint at ¶ 89.) Because there is no pattern
of conduct alleged, any claim against ISM under the UCL’s “unfair” prong must fail.
See Van de Kamp, 46 Cal. 3d at 1170.
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For these reasons as well, the demurrers of Miller and ISM to this cause of action
should be sustained without leave to amend.
3. Brees Does Not Allege Any Fraudulent Conduct
Finally, Brees does not appear to allege a UCL claim under the “fraudulent”
prong of Section 17200. Brees has not explained with particularity the who, what,
when, where and why of any fraudulent conduct allegedly perpetrated by Miller or ISM.
Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal. App. 4th 153, 157. Indeed,
Brees has failed to allege fraudulent conduct at all – much less with the requisite
particularity. (See Complaint at ¶¶ 87-92.)
For each and every one of the above reasons, the demurrers of Miller and ISM to
Brees’ UCL cause of action should be sustained without leave to amend.
H. Brees’ Eighth Cause of Action, for “Declaratory Judgment,” Fails to
State a Claim Against Both Miller and ISM
Brees’ eighth cause of action seeks a declaratory judgment “to confirm the
parties’ rights in and to the 2010 Contribution Agreement.” (Complaint at ¶ 95.) As
explained at length above, Brees has failed to allege that Miller is a party to the 2010
Contribution Agreement. (See supra, at Section III(A).) Because Miller is not a party to
the 2010 Contribution Agreement, no cause of action for declaratory judgment against
him exists and Miller’s demurrer to this cause of action should be sustained without
leave to amend.
The declaratory judgment claim should also be dismissed against both Miller and
ISM because the facts as pleaded do not seek a forward-looking pronouncement of the
rights and duties of the parties. Osseous Technologies of Am., Inc. v. DiscoveryOrtho
Partners LLC (2010) 191 Cal. App. 4th 357, 363. The purpose of a declaratory
judgment is to “serve some practical end in quieting or stabilizing an uncertain or
disputed jural relation. . . [and] to liquidate doubts with respect to uncertainties or
controversies which might otherwise result in subsequent litigation.” Osseous, 191 Cal.
App. 4th at 364-65. One test of the right to institute proceedings for declaratory
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judgment is the “necessity of present adjudication as a guide for Brees’ future conduct
in order to preserve his legal rights.” Id. (confirming trial courts order sustaining
demurrer on declaratory judgment claim without leave to amend, which found ‘the case
as alleged in the complaint is nothing more than a ‘breach of contract’ action….There
are no allegations in the complaint that suggest that declaratory relief will regulate future
conduct by the parties….”). There is no basis for declaratory relief where only past
wrongs are involved. Id. at 366. As stated by the Osseous Court, “where there is an
accrued cause of action for an actual breach of contract or other wrongful act,
declaratory relief may be denied.” Id. at 366.
Here, Brees alleges that it terminated its contract with ISM and has filed a breach
of contract action. (Complaint at ¶¶ 48-49.) A declaratory judgment by the Court in this
instance will do nothing to regulate future conduct by the parties, and will only be
duplicative of the breach of contract claim. Under these circumstances, the complaint
fails to allege a cause of action for declaratory judgment and the demurrers of Miller and
ISM to this cause of action should be sustained without leave to amend.
IV. TO THE EXTENT BREES RELIES UPON VAGUE ALLEGATIONS OF
CONDUCT BY “DEFENDANTS,” BREES’ ALLEGATIONS ARE FATALLY
UNCERTAIN
The Complaint should additionally be dismissed because each of the allegations
are fatally uncertain. In its Complaint, Brees was required to state “the essential facts
upon which a determination of the controversy depends” with “clearness and precision
so that nothing is left to surmise.” Bernstein v. Piller (1950) 98 Cal. App. 2d 441, 443.
“Mere recital, references to or allegations of material facts which are left to surmise are
subject to a special demurrer for uncertainty.” Id. at 443-444.
Here, as discussed above, Brees has failed to attach the Agreements or provide
verbatim the Agreements material terms. Moreover, the Complaint continuously lumps
Miller and ISM together in its allegations by alleging that “Defendants” breached the
contract, despite the failure to provide verbatim any section of the contracts stating that
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Miller was an individual party to the Agreement. (Complaint at ¶¶ 51-55.) Brees
creates further confusion by acknowledging in its allegations that the Agreements at
issue were solely between “Brees and ISM.” (Complaint at ¶¶ 24, 30, 51.) As a result,
it is impossible for Miller to understand why he has been sued in his individual capacity
and therefore all of Brees’ contract based allegations (those for breach of contract, bad
faith, accounting and declaratory relief) are fatally uncertain under CCP 430.10(f). If
Brees had attached the alleged contract, or outline its terms (including the parties)
verbatim, would only confirm that Brees has no claim against Miller and/or ISM.
The remainder of Brees’ claims are also fatally uncertain pursuant to CCP
430.10(f) due to Brees’ habit of lumping ISM and Miller together. For example, Brees’
Conversion claim alleges that “Defendants” have wrongfully converted charity revenue,
money and prizes for their own purposes, but also alleges that under the 2010
Agreement, ISM (not Miller) was entrusted to act on behalf of Brees in producing the
event and in soliciting and collecting charity revenue and that ISM (not Miller) “solely
retained as profits the monies collected in excess of the rate negotiated with the
Resort.” (See Complaint at ¶¶ 41, 71-73.) Similarly, Brees’ accounting claim alleges
that under the 2010 Agreement, “ISM … promised to keep available full, true and
accurate records and books of accounts….” (Complaint at ¶ 77.) Yet, Brees then
alleges that “Defendants” have failed to provide an accounting as required under the
Agreements. (Id. at ¶ 78.)
The Complaint is replete with instances where Brees impermissibly lumps Miller
and ISM together, making it impossible to understand why each individual defendant
has been sued. (See also Complaint at ¶¶ 4,-7, 12, 15, 47, 51-53, 59, 65-66, 72, 83,
88, 89, 91, 94 for instances where Defendants are lumped together, compared with
Complaint at ¶¶ 24, 25, 30, 31, 38-41, 45, 46, 48, 51 for instances where Brees
acknowledges that obligations under the Agreement belonged only to ISM.) See
Hawley Bros. Hardware Co. v. Brownstone (1899) 123 Cal. 643, 645-648 (holding that a
demurrer should have been sustained because of uncertainty where the complaint
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PROOF OF SERVICE BY MAIL
Case No. 37-2012-00087492-CU-BC-CTL
I, the undersigned, say: I am over the age of eighteen years and not a party to
the within action or proceeding; that I am an employee of McDonald Carano Wilson
LLP, with a business address of 100 West Liberty Street, 10th Floor, Reno, Nevada,
89501.
That on the 22nd day of January, 2013, I caused an envelope, containing a true
and correct copy of the foregoing DEFENDANTS INTEGRATED SPORTS
MARKETING, INC.’S and DAVID R. MILLER’S: NOTICE OF DEMURRERS AND
DEMURRERS TO COMPLAINT, and MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT to be deposited in
the U.S. Mail, at Reno, Nevada, with postage prepaid, addressed to the following:
James M. Pearl Adam J. Sullins Jason H. Tokoro W. Adam Hunt O’Melveny & Myers LLP 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067-6035 I declare under penalty of perjury that the forgoing is true and correct.
Executed on January 22, 2013 at Reno, Nevada.
/s/ Elizabeth E. Helms An employee of McDonald Carano Wilson LLP