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There is no cause of action. The RICO, shareholder oppression, harassment, discrimination, misrepresentation and fraud causes of action must be pleaded with greater specificity. The 26th through 31st causes of action must identify which defendants engaged in alleged wrongdoing. The SACC alleged no new facts, but in addition to each cause of action incorporating by reference all the paragraphs from each preceding cause of action, some causes of action which the trial court had found lacking in certainty now contained cross references back to specific paragraphs in the SACC's general allegation section.
The SACC referred to the same exhibits that were attached to prior versions, and stated they were incorporated therein by reference, but the copy of the SACC contained in the clerk's transcript does not have any exhibits attached to this final version of the pleading. The Defendants refiled the same demurrer, which the trial court sustained without leave to amend because the SACC failed to state facts sufficient to constitute a cause of action.
Trial on Rubicon's complaint against Bettingen has been stayed pending this appeal. That order is the subject of the companion appeal filed concurrently herewith. Bettingen et al. Rubicon Financial, Inc. As observed in California Dental Assn. California Dental Hygienists' Assn. Although an order of dismissal following sustaining of a demurrer without leave to amend Code Civ. Procedure 3d ed. Despite the nonappealability of the dismissal as to Rubicon and GBI, there are "further considerations that counsel strongly against simply dismissing this phase of the appeal.
For example, in California Dental dismissal of a complaint without leave to amend constituted a final judgment as to the non-cross-complaining defendants and thus plaintiff was entitled, and likely obligated, to appeal the judgment as to them immediately. Additionally, the dismissal was final as to two plaintiffs who were not named in the cross-complaint. The court concluded exercising mandatory jurisdiction over the appeal as to parties as to whom the judgment was final, but deferring consideration of the appeal as to the parties still involved in the litigation "would further the very fragmentation and multiplicity of appeals that the final judgment rule seeks to avoid.
Similarly in G. The trial court granted summary judgment for all defendants on the complaint and the subcontractor appealed. The appellate court held there was a final appealable judgment as to the insurer, but not as to all the other parties because of the pending cross-complaint. Nonetheless, the court concluded because "the interests of judicial economy will be better served by resolving the issues as to all parties at this time, and defendants did not originally contest our jurisdiction, we will treat this appeal as a petition for writ of mandate as to all defendants except [the i]nsurer, rather than dismissing the appeal as to all but [the i]nsurer.
In this case, as in California Dental and G. However, it is appropriate to treat the appeal as a petition for writ of mandate as to Rubicon and GBI. The entire dispute arises out of Rubicon's acquisition of GBI, and no party has challenged our jurisdiction to consider the matter. To consider the dismissal order as to only the individual defendants, while deferring consideration of the dismissal of Rubicon and GBI and of Bettingens' right to pursue affirmative relief on the contracts , until they have had their day in court on the complaint would result in the "fragmentation and multiplicity of appeals that the final judgment rule seeks to avoid.
It would also, at least theoretically, remit the principal plaintiff and defendant to roles as amicus bystanders while a controversy that is principally theirs resolves itself. Merrill v. Navegar, Inc. Advanced Group 25 Cal. The correct standard of course is that we review an order sustaining a demurrer by exercising our independent judgment to determine whether a cause of action has been stated under any legal theory.
Ochs v. PacifiCare of California Cal. We must accept as true properly pleaded allegations of fact but not contentions, deductions, or conclusions of fact or law. Blank v. Kirwan 39 Cal. The Defendants urge us to affirm the order sustaining the demurrer without leave to amend because the unwieldy page SACC violates the rules of pleading.
They quote the opening paragraph from an ancient California Supreme Court case, Green v. Palmer 15 Cal. It is stuffed full of irrelevant matter—suggestions, charges and statements, which subserve no useful purpose, and are only calculated, when read to the jury, to excite prejudice against the defendants.
Green, supra, 15 Cal. Meeham Cal. That the Bettingens included much in their SACC that might properly be stricken does not lead to the inevitable conclusion the SACC failed to contain sufficient allegations to support any of their causes of action.
The trial court did not rule on the motion to strike. Truck Ins. Exchange Cal. We conclude it does. We begin with a summary of the general allegations of the SACC. In brief, Bettingen, a licensed securities broker, sold his brokerage business, GBI to Rubicon via a "reverse triangular merger," which involved various contracts calling for payment in the form of cash and Rubicon stock.
Additional consideration for the sale was that Bettingen would remain employed by GBI pursuant to a five-year employment agreement. The SACC alleged the Defendants failed to make all the payments due under the agreements, prematurely terminated Bettingen's postmerger employment with GBI, and thereafter interfered with his ability to earn a living as a securities broker. The tale told in the SACC becomes more sordid when told against the backdrop of Securities and Exchange Commission SEC criminal investigations into and indictments against some of the individual defendants for securities fraud.
The criminal charges concerned "pump and dump" schemes involving the manipulation of "penny-stocks'" so as to create the illusion of market interest in those stocks, driving up their price and allowing the traders to sell the otherwise virtually valueless stocks for huge profits.
Throughout the SACC, Bettingen is alleged to be "elderly," a "senior citizen," and suffering a physical disability due to heart disease. The Bettingens purport to sue "on behalf of themselves," and "derivatively on behalf of. Rubicon" because as a result of the merger, the Bettingen Trust became record owner of 1,, shares of Rubicon common stock, which was 9.
Mangiapane quickly gained Bettingen's confidence. By January , Bettingen had returned to work and began attending meetings with Mangiapane "and others," regarding the sale of GBI. Mangiapane "and others," gave Bettingen a Rubicon "Business Plan" and other reports and documents, which the Bettingens now believe "were actually falsified and fraudulent reports and documents, to help entice [Bettingen] to sell. Eventually, the Defendants presented Bettingen with the formal documents for a "reverse triangular merger" between Rubicon and GBI.
The Merger Agreement was executed and became effective June 28, The "Merger Consideration" included, among other things, that those 90 shares of GBI would be exchanged for 1,, shares of Rubicon common stock, which would vest immediately in the Target Shareholder.
Additionally, the Target Shareholder i. The Merger Agreement was amended three times before the deal closed. The amendment stated the Merger Consideration i. That agreement was signed by Bettingen as president of GBI.
The Employment Agreement provided for Bettingen to be employed by GBI for a five-year term ending June 1, , with a two-year renewal. He could only be terminated for cause. The Employment Agreement provided for a salary, stock options and other benefits, incentives and other compensation, and health insurance for Bettingen and his dependents.
The SACC alleged that around the time the Merger Agreement was executed June , Mangiapane and McPherson began placing personnel in Rubicon from a recently failed securities brokerage Brookstreet Securities Corporation , to start "run[ning] the show" at GBI all as part of a "vision" to ultimately get Bettingen out of the way.
These new staff members began "to purge GBI. Bettingen was elderly and had already suffered an aortic aneurysm," the Defendants "began a systematic and calculated attack on the [Bettingens] to drive them from. The attacks included. Bettingen's mental and physical health; harassment; defamatory remarks to the financial community and others regarding Bettingen's health and competency to continue in his role at GBI.
Bettingen, which violated labor standards and involved false and inflammatory allegations. When he demanded access to financial records to confirm the pay cut, access was denied. During this same time period, Mangiapane, Scott, Herring, and Vande Hei "unilaterally and arbitrarily changed.
Bettingen both personally and professionally. They cancelled the Bettingens' health insurance, and "illegally and wrongfully" suspended Bettingen's "Series 7 General Securities license" depriving him of income and access to his clients and ongoing transactions. The Defendants "fraudulently and with malice, created false barriers for.
Bettingen to reinstate his. The SACC alleged that after firing Bettingen, GBI and Rubicon refused to pay him his earned commissions, expense reimbursements, deferred salary, and investment banking overrides, thereby "converting" Bettingen's money to their own purposes.
In May , the federal government filed the indictment against Mangiapane, Brown, and Riviello, but Rubicon and its Board of Directors took no action and did not perform any investigation or inquiry concerning the indicted defendants' activities at Rubicon or GBI. In , Brown and another individual not named in the Bettingens' complaint plead guilty to charges in separate criminal indictments "regarding the same matter.
The appellate rules are clear: Even when we employ a de novo review, "it is limited to issues which have been adequately raised and supported in [appellant's opening] brief. Kosha 65 Cal. Bay Area Rapid Transit Dist. This burden requires more than a mere assertion that the judgment is wrong.
When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. County of Los Angeles Cal. To consider arguments not adequately raised in the opening brief would require this court to act as appellants' counsel on appeal. This is not our role.
The Bettingens' opening brief contains no argument at all concerning the SACC's RICO cause of action 13th cause of action , the "minority shareholder oppression" cause of action 14th cause of action , or the commercial disparagement cause of action 17th cause of action. Accordingly, we deem them to be abandoned and we will not address them further.
Bagley v. International Harvester Co. The Bettingens' opening brief purports to address every other cause of action in the SACC, asserting everyone was adequately plead. But most are so inadequately and haphazardly briefed, that we deem many of them waived as well. For example, the SACC contained four causes of action for intentional and negligent interference with prospective economic advantage: two purportedly on the Bettingens' individual behalves 8th and 10th causes of action and two purported "derivative" causes of action brought as shareholders of Rubicon 9th and 11th causes of action.
They also alleged a "derivative" breach of fiduciary duty cause of action, brought as shareholders of Rubicon 20th cause of action. The Bettingens' opening brief contains separate sections on the two "individual" causes of action. The "derivative" causes of action are lumped into a section in which the only argument is that they adequately alleged their status as shareholders to seek redress for harms to the corporations, and apparently we are meant to refer back to the arguments on the individual for the substantive argument.
As for each of the foregoing causes of action, the Bettingens' briefing is the same. They provide us with one paragraph reciting the elements of cause of action followed by a second two-sentence paragraph stating simply "each and every factual element was plead in [their] SACC[,]" and therefore, the trial court erred by sustaining the demurrer as to these causes of action. They engage in absolutely no analysis of the alleged facts or attempt to demonstrate how the alleged facts support the particular cause of action.
Accordingly, their arguments concerning these causes of action are waived. Lewis v. County of Sacramento 93 Cal. The same is true for several other causes of action. The Bettingens' opening brief contains a separate section on each, and again their argument is comprised of nothing more than a cite to a case setting forth the elements followed by the statement the SACC adequately alleged the elements, with absolutely no analysis.
We conclude these arguments are waived. The Bettingens' arguments concerning the SACC's FEHA causes of action for failure to prevent harassment cause of action 27th cause of action , and failure to take corrective action cause of action 28th cause of action Gov.
For each the Bettingens' substantive argument is comprised of nothing more than a quote of the form CACI jury instruction for the cause of action interlineated with a few cites to the clerk's transcript, or an extended single spaced verbatim quote of paragraphs from the SACC followed by the statement the quoted section is an adequate allegation of a cause of action for which there has been absolutely no legal analysis.
In view of the total absence of legal analysis and citation to appropriate authorities to support their assertions see People v. Morales 25 Cal. See Susag v. City of Lake Forest 94 Cal. We turn to the causes of action for which arguably adequate analysis has been provided.
It also alleged causes of action for breach of the implied covenant of good faith and fair dealing contained in the Merger Agreement 4th cause of action and the Employment Agreement 5th cause of action. We conclude each sufficiently alleged the necessary elements for a cause of action, and we reverse the order as to those causes of action. The elements of a cause of action for breach of contract and for breach of the implied covenant of good faith and fair dealing are similar.
But while the third element of a breach of contract cause of action is the defendant's actual breach, a breach of the implied covenant of good faith and fair dealing cause of action requires proof the defendant unfairly interfered with plaintiff's right to receive the benefits of the contract. The implied covenant is supplemental to the express contractual covenants. It imposes upon each contracting party the duty to do everything the contract presupposes he or she will do to accomplish its purpose but cannot be used to create obligations not contemplated by the contract.
Pasadena Live v. City of Pasadena Cal. Hibernia [S. Bank of America 21 Cal. The SACC's 3rd cause of action alleged the Employment Agreement was entered into between GBI and Bettingen as part of the consideration for the Merger Agreement; the employment term was five years with a two-year renewal; Bettingen was to receive a negotiated salary, compensation in the form of stock options among other things, and health insurance. Bettingen performed all conditions required of him.
GBI breached the Employment Agreement by first duping him into taking a 50 percent pay cut, and then ultimately terminating his employment in violation of the terms of the Employment Agreement causing Bettingen damage. The SACC's 23d cause of action alleged an actual controversy existed between the Bettingens, Rubicon, and GBI concerning their respective rights and duties under the three agreements. It sought a judicial declaration of the parties' rights and duties. The Defendants' demurrer to the 1st, 3d, 4th, and 5th causes of action in the FAC and the SACC relating to the Merger Agreement and the Employment Agreement raised only the specific ground Christi was not a party to those agreements, i.
The demurrer made no reference to the 23d cause of action for declaratory relief. In practical effect, this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled.
Procedure 4th ed. Ranger Ins. Furthermore, in sustaining the demurrer to the FAC, the trial court's order directed "the Bettingens" to allege their standing to sue for breach of contract or interference with contract because they were not parties to them. But adequate allegation of standing is apparent from the pleading.
Royal Surplus Lines, supra, Cal. First and foremost, Bettingen as an individual was a party to the Employment Agreement. He clearly had standing to sue for its breach, and nowhere do the Defendants suggest otherwise. That Bettingen's wife and family trust might have been improperly named in that cause of action because the pleading referred to damages sustained by the "cross-complainants" rather than Bettingen alone does not justify denying relief.
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