Opposition to Demurrer
 

All of the Defendants appeared in this Case on December 20, 2006, by serving a Demurrer and Motion to Strike.  The hearing date is January 29, 2007 at 8:30 a.m. in Department 52, Los Angeles Superior Court, 111 N. Hill Street, Los Angeles, CA 90017.

Here is the Plaintiffs' Opposition to the Defendants' Demurrer, which was filed with the Court on January 3, 2007:

TO THE COURT AND TO DEFENDANTS AND THEIR ATTORNEY OF RECORD HEREIN:

          In the first century AD, Pliny the Elder wrote of ostriches, “for although the rest of their body is so large, they imagine, when they have thrust their head and neck into a bush, that the whole of the body is concealed” Gaius Plinius Secundus, Naturalis Historia (approx. 77 AD) Book X, The Natural History of Birds, English translation in Pliny the Elder, The Natural History (1855, eds. John Bostock, M.D., F.R.S., H.T. Riley, Esq., B.A.).  This commentary is widely believed to be the origin of the phrase “bury your head in the sand” which means “to refuse to confront a problem.” 

In their Demurrer, Defendants do not confront the allegations of the Complaint.  Defendants argue either that the First Amended Complaint (FAC) does not have something it needs - a jurisdictional affidavit - when Plaintiffs could not have filed their a Complaint without it; or that the FAC does not really have the terms of the contract, or that it really does not set forth the misrepresentations made by Defendants – when the FAC attaches the contracts and describes multiple misrepresentations in great detail.  Imagination aside, no shrub is large enough to conceal the case against the Defendants.

I.

PLAINTIFFS FILED AN AFFIDAVIT OF JURISDICTION CONCURRENTLY WITH THE COMPLAINT.  IT IS REQUIRED BY LOS ANGELES SUPERIOR COURT RULE 2.0(d) AND IS CALLED A “CIVIL CASE COVER SHEET ADDENDUM.”

            The first argument that the Defendants make in their demurrer is that the Plaintiffs’ complaint should be dismissed because Plaintiffs did not file an affidavit of jurisdiction concurrently with the filing of the Complaint in accordance with Civil Code §1780(c), “An action under subdivision (a) or (b) may be commenced in the county in which the person against whom it is brought resides, has his or her principal place of business, or is doing business, or in the county where the transaction or any substantial portion thereof occurred.”  When this matter was filed, Plaintiffs’ counsel complied with Los Angeles County Rules of Court Rule 2.0 (d), by submitting “a separate page bearing the title of the court and cause, stating which of the grounds specified in this rule authorizes the filing in such district and shall be signed by counsel. If the ground is the residence of a party, his/her name and residence shall be stated.”  The Civil Case Cover Sheet is addendum is an affidavit, made under penalty of perjury.  In accordance with Rule 2.0(d), Plaintiffs actually served the affidavit and the Summons and Complaint on each of the ten Defendants, twice.

          Plaintiffs hereby respectfully request that this Court take judicial notice of the Civil Case Cover Sheet filed concurrently with the original Summons and Complaint in this matter.

II.

PLAINTIFFS HAVE SUFFICIENTLY PLEADED THEIR BREACH OF CONTRACT BASED ON TERMS THAT ARE IN WRITING AND ATTACHED TO THE COMPLAINT, AND SET FORTH IN THE FIRST AMENDED COMPLAINT

Code of Civil Procedure §430.10 (g) states that a demurrer can be sustained “In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”  Plaintiffs’ Complaint attaches Plaintiffs’ written contracts, see, e.g., Exhibit “B”.  When written contracts were unavailable for particular Plaintiffs, Plaintiffs pleaded the terms of the contracts were the same, in general, as the terms of the contracts already attached in Exhibit “B” (see, e.g., RACHEL ARMSTRONG, ¶ 127; HEIDI ASLETT, ¶ 133; CHRISTINE BOYD, ¶ 146; STEPHANIE DAVIS, ¶ 162; MARY LOU HENSLEY, ¶ 177; ERIC KURZ, ¶ 193; PAT SAMMONS, ¶ 226; and SHELLEY SMITH, ¶ 235).

The breaches of all Plaintiffs’ contracts are in the FAC ¶¶ 92 to 102.  Unique breaches of oral and written terms, applicable to individual Plaintiffs, are at FAC ¶ 106 through ¶ 286.

Defendants boldly (literally -- the text page 3 of the Demurrer is bolded) state that Plaintiffs made no attempt to state what terms of the contracts were in writing and what terms of the contract are oral.  The written terms are set forth in writings attached as Exhibit “B” to the FAC.  The oral terms are discussed in the FAC but not in writing in Exhibit “B”.  Defendants argue Plaintiffs may not plead oral terms of a contract, because it “is squarely at odds with the parol evidence rule” Demurrer, page 3, footnote 6.  Purported violations of the parol evidence rule aside, Code of Civil Procedure §1856 is not a basis for sustaining a demurrer, see, e.g., Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal. 2d 583, 585.  “"[I]t is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.] It 'admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.' " (Committee on Children's Television, Inc. v. General Foods Corp., (1983) 35 Cal. 3d 197, 213-214.)” cited in Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47.

HOLLYWOOD PAWS and the other Defendants are not precluded from pleading the parol evidence rule as an affirmative defense, but it is not be the basis for demurrer.

III.

PLAINTIFFS HAVE SUFFICIENTLY ALLEGED FRAUD, SETTING FORTH WHAT FRAUDULENT MISREPRESENTATIONS WERE MADE; WHO MADE THEM; WHEN THEY WERE MADE; HOW THEY WERE MADE; TO WHOM THEY WERE MADE;

AND WHO RELIED ON THEM.

“It is well established in California and other jurisdictions that a person who has been induced by fraudulent misrepresentations to enter into a contract or to make a conveyance may have the contract or conveyance set aside and secure a restitution of those benefits lost to him by the transaction. [cites] A fraudulent misrepresentation is one made with the knowledge that it is or may be untrue, and with the intention that the person to whom it is made act in reliance thereon. [cites]  It must appear, however, not only that the plaintiff acted in reliance on the misrepresentation but that he was justified in his reliance. . . . Negligence on the part of the plaintiff in failing to discover the falsity of a statement is no defense when the misrepresentation was intentional rather than negligent.  [cites]  As a general rule negligence of the plaintiff is no defense to an intentional tort. [cites]” Seeger v. Odell (1941) 18 Cal. 2d 409, 414.  Defendants’ reliance on Seeger in their Demurrer was misplaced, since the Supreme Court actually held, “In the present case the allegations of the plaintiffs' complaint, if true, are sufficient to establish the right to relief on the basis of a fraudulent misrepresentation” Seeger at 415.

“The pleading should be sufficient "'to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.'" [cites]” Committee on Children's Television, Inc. v. General Foods Corp. at 217. 

Among other things, Plaintiffs’ FAC alleges that each of the Defendants made misrepresentations to every Plaintiff.  Defendants said either BARBIZON SCHOOL OF SAN FRANCISCO, INC. (BARBIZON)/PETS ON CAMERA, and/or HOLLYWOOD PAWS trained animals had appeared in eight major motion pictures, although it was not possible for any of those entities to have trained those animals FAC ¶¶ 52 to 59.  Plaintiffs attached copies of the written advertisements used by the Defendants in Exhibit “A” to the FAC.  Plaintiffs’ FAC alleges that the Defendants said that BARBIZON/PETS ON CAMERA and HOLLYWOOD PAWS were licensed talent agents FAC ¶¶ 60 to 68.  Defendants also told Plaintiffs that they were members of eight different organizations, including the International Brotherhood of Teamsters FAC ¶¶ 76 to 91. 

“Fraud can be perpetrated by any means of communication intended to reach and influence the recipient” [emphasis added] Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 175.  This particular action involves nineteen different Plaintiffs; ten different Defendants; and misrepresentations made over two years.  The First Amended Complaint is 84-pages long, without counting the exhibit pages.  The Supreme Court, discussing the 64-page operative complaint in Committee on Children's Television stated, “A complaint should be kept to reasonable length” Committee on Children's Television at 217.  “A complaint which set out each advertisement verbatim, and specified the time, place, and medium, might seem to represent perfect compliance with the specificity requirement, but as a practical matter, it would provide less effective notice and be less useful in framing the issues than would a shorter, more generalized version” Committee on Children's Television at 217.  This Court should disregard the portions of the Defendants’ demurrer arguing demurrer should be sustained because Plaintiffs did not repeat the allegations in the introduction to the FAC in each cause of action.

The Defendants’ demurrer admits that the “one sheets” (Exhibit “A”) could be construed as an implied representation or concealment (Demurrer, page 6, line 15 to 18).

IV.

PLAINTIFFS ALLEGED THAT DEFENDANTS MADE ACTUAL STATEMENTS THAT WERE MISREPRESENTATIONS.  THEREFORE, THEIR ALLEGATIONS OF NEGLIGENT MISREPRESENTATION ARE SUFFICIENT.

          “Negligent misrepresentation is a species of fraud or deceit specifically requiring a "positive assertion" (Civil Code § 1572, subd. 2) or "assertion" (Civil Code § 1710, subd. 2) of fact. [cites] An "implied" assertion or representation is not enough. [cites]” Wilson v. Century 21 Great Western Realty (1993) 15 Cal. App. 4th 298, 306.  Defendants demurer to the cause of action for Negligent Misrepresentation, claiming Plaintiffs did not provide “affirmative statement[s]” by the Defendants.  Defendants say the FAC is based on “implied representation or on non-disclosure or concealment” Demurrer, page 6, line 4 to 5.

Defendants are wrong.  Without repeating the entire Complaint, here are enough allegations for the Court to overrule the demurrer:  BARBIZON said in writing that it was part of International Performing Arts Academy FAC ¶ 23, when it was not.  In 2004, LARRY LIONETTI told Plaintiff ERIC KURZ, that world-renowned trainer BD was employed by BARBIZON/PETS ON CAMERA , when BD was not FAC ¶ 38.  HOLLYWOOD PAWS LLC, LARRY LIONETTI, LENA LIONETTI, LENA MARIE LIONETTI, PETS ON CAMERA, BARBIZON, RAQUELLE VALLEJO, KIMBERLY KLEINMAN and TAMMY BOWERS falsely told the Plaintiffs that either BARBIZON/PETS ON CAMERA or HOLLYWOOD PAWS trained the animals cast in many major movies, including There’s Something About Mary FAC ¶ 58; The Good Son FAC ¶ 57; and Vanilla Sky ¶ 59.

Whether or not the “one sheets” FAC Exhibit “A show Defendants’ concealment, implied misrepresentations, or affirmative misrepresentations is an issue to be determined by the trier of fact; and not one to be disposed of by demurrer.

V.

PLAINTIFFS HAVE ADEQUATELY PLEADED

DEFENDANTS’ VIOLATIONS OF THE CONSUMER LEGAL REMEDIES ACT

California Civil Code §1770 states, “(a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful:  (1) Passing off goods or services as those of another.  (2) Misrepresenting the source, sponsorship, approval, or certification of goods or services.  (3) Misrepresenting the affiliation, connection, or association with, or certification by, another . . . (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.”

The following allegations are sufficient to overcome a demurrer to this cause of action:  Plaintiffs alleged that Defendants’ services had the sponsorship, approval or affiliation with the American Humane™ Association FAC ¶ 76, the American Kennel Club® FAC ¶ 77, the International Performing Arts Academy FAC ¶ 78, Moorpark College FAC ¶¶ 80 and 81, the International Brotherhood of Teamsters Local 399, FAC ¶¶ 82 to 89, Therapy Dogs International© FAC ¶ 90, and the United States Department of Agriculture FAC ¶ 91.

VI.

PLAINTIFFS HAVE SUFFICIENTLY PLEADED THAT THE CORPORATE DEFENDANTS ESPECIALLY BARBIZON ARE PROPER PARTIES TO THIS ACTION

“Parties who determine to avail themselves of the right to do business by means of the establishment of a corporate entity must assume the burdens thereof as well as the privileges. The alter ego doctrine is applied to avoid inequitable results not to eliminate the consequences of corporate operations. [cites]” Aladdin Oil Corp. v. Perluss (1964) 230 Cal. App. 2d 603, 614.

Plaintiffs sufficiently allege that the Defendants were the alter egos of each other.  Again, without restating the entire Complaint, the following allegations are sufficient to overcome the demurrer:  Plaintiffs alleged that PETS ON CAMERA was a division of BARBIZON FAC ¶¶ 23, 32 and 33; and that BARBIZON was an agent or alter-ego of the Defendants, FAC ¶¶ 30 31, 34 and 35.  Among other things, Defendants used the checking accounting and other assets of BARBIZON to run PETS ON CAMERA, and later, HOLLYWOOD PAWS LLC FAC ¶¶ 34, 44.  For that matter, Plaintiffs also made specific allegations about the fraud committed by BARBIZON FAC ¶¶ 38, 40, 44, and 61.  With respect to HOLLYWOOD PAWS FRANCHISING, LLC, Plaintiffs have alleged that it was using the space and the assets of HOLLYWOOD PAWS LLC FAC ¶ 35; and that HOLLYWOOD PAWS FRANCHISING LLC and HOLLYWOOD PAWS LLC jointly made the same misrepresentations to the plaintiffs and the public, see, e.g., FAC Second Cause of Action for Fraud and the Third Cause of Action for Negligent Misrepresentation.

VII.

CONCLUSION

          Defendants’ disdain for the Plaintiffs in this case, and the public as a whole, is demonstrated by the tone of its Demurrer.  Rather than making valid arguments in support of their demurrer, Defendants ridicule the Plaintiffs, implying that they deserved to be taken advantage of.  The Court should figuratively pull the Defendants’ head out of the sand and overrule Defendants’ demurrer in its entirety.

Dated:  January 3, 2007                                   HYDE MULVIHILL APC

                                                                      _________________________________

                                                                      Cynthia Coulter Mulvihill

                                                                      Attorney for Plaintiffs

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