2013-00143375-CU-MC

William L. Altig D.D.S Inc vs. Kevin R. Tanner D.D.S.

Nature of Proceeding:    Hearing on Demurrer

Filed By:   Kelly, Kevin P.

Defendant Kevin R. Tanner D.D.S.’ Demurrer to the Amended Complaint is sustained
with leave to amend as follows:

Defendant’s Request for Judicial Notice is granted.

Plaintiffs allege that “Dr. Altig” and defendant entered into a partnership in 2002 known
as Tanner and Altig Dentistry Partnership. Dr. Altig purchased a 33 1/3% ownership
interest in the Partnership and Dr. Tanner had a 66.7% ownership interest.  In 2007, a
partnership addendum increased Dr. Altig’s ownership interest to 45 % and Dr.
Tanner’s to 55% in exchange for Dr. Altig’s payment to Dr. Tanner of an additional
$134,050.

Plaintiffs allege Dr. Altig filed for personal bankruptcy in 2011.  On January 12, 2012,
Dr. Altig purchased his interest in the partnership from the assets of the bankruptcy
estate.  Thereafter, plaintiff alleges that defendant has affirmed Dr. Altig as a partner.
Plaintiff alleges that Dr. Tanner thereafter usurped partnership funds for his own use
and withheld assets from Dr. Altig.  Plaintiffs refer to each of them as “Dr. Altig” even
though one plaintiff is a corporation. It is not clear from the pleadings which entity is
being referred to in the different factual allegations.

The demurrer to the entire complaint on the ground of uncertainty is sustained, with
leave to amend.  A demurrer for uncertainty may lie if the failure to label the parties
and claims renders the complaint so confusing that the defendant cannot tell what he
or she is supposed to respond to.  Williams v Beechnut Nutrition Corp. (1986) 185
Cal.App.3d 135, 139.

Plaintiffs state in the in opposition that the facts are simple and known to the
defendant.  The flaw in this argument is that those facts are not alleged in the  Amended Complaint and therefore it is unreasonably difficult for the Court to
understand what allegations are being made.

1st cause of action Breach of Fiduciary Duty: Sustained with leave to amend for
failure to state facts sufficient to constitute a cause of action on behalf of Dr. Altig.  The
Court has judicially noticed the Partnership Agreement attached to the cross-complaint
where in the parties listed are Dr. Tanner and Altig Inc.

Sustained with leave to amend for uncertainty. The Plaintiffs are both a corporation
and an individual that are referred to as Dr. Altig but it is not clear from the pleadings
which entity is being referred to in the different factual allegations.

2nd cause of action Breach of Written Contract:  Sustained with leave to amend for
failure to state facts sufficient to constitute a cause of action on behalf of Dr. Altig.  The
Court has judicially noticed the Partnership Agreement attached to the cross-complaint
where in the parties are Dr. Tanner and Altig Inc

Sustained with leave to amend for uncertainty. The Plaintiffs are both a corporation
and an individual that are referred to as Dr. Altig but it is not clear from the pleadings
which entity is being referred to in the different factual allegations.

3rd cause of action Dissolution of Partnership:  Sustained with leave to amend for
uncertainty. The Plaintiffs are both a corporation and an individual that are referred to
as Dr. Altig but it is not clear from the pleadings which entity is being referred to in the
different factual allegations.

4th cause of action Recission of APA -Fraud: Sustained with leave to amend for
uncertainty. The Plaintiffs are both a corporation and an individual that are referred to
as Dr. Altig but it is not clear from the pleadings which entity is being referred to in the
different factual allegations.

5th cause of action Recission of APA- Failure of Consideration: Sustained with
leave to amend for uncertainty. The Plaintiffs are both a corporation and an individual
that are referred to as Dr. Altig but it is not clear from the pleadings which entity is
being referred to in the different factual allegations.

6th cause of action Recission-Breach of the Covenant of Good Faith and Fair
Dealing:  Sustained without leave to amend.  Although the demurrer was only on the
ground of uncertainty, plaintiff concedes the merits of the demurrer and agrees to
remove this cause of action from the pleading.

7th cause of action Negligent Misrepresentation: Sustained with leave to amend for
uncertainty. The Plaintiffs are both a corporation and an individual that are referred to
as Dr. Altig but it is not clear from the pleadings which entity is being referred to in the
different factual allegations.

8th cause of action Declaratory Relief: Sustained with leave to amend for
uncertainty. The Plaintiffs are both a corporation and an individual that are referred to
as Dr. Altig but it is not clear from the pleadings which entity is being referred to in the
different factual allegations.            9th cause of action Injunctive Relief: Sustained with leave to amend for uncertainty.
The Plaintiffs are both a corporation and an individual that are referred to as Dr. Altig
but it is not clear from the pleadings which entity is being referred to in the different
factual allegations.  Sustained with leave to amend for failure to state facts sufficient to
constitute a cause of action on the ground much of the relief sought would not be
proper injunctive relief.

The Motion to Strike:
The motion to strike the 6th cause of action is granted without leave to amend.
Plaintiffs agree to remove this cause of action.  The motion to strike punitive damages
and other items requested to be stricken is granted with leave to amend.

Plaintiff may file and serve a 2nd amended complaint on or before February 20, 2014.
Response to be filed and served within 15 days of service of the amended complaint,
20 days if served by mail.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(D).  Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
Court’s tentative ruling procedure.  If  counsel for moving party is unable to contact
counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.