F. Bari Nejadpour (SBN 216925)

F. Bari Nejadpour & Associates, PLC

3540 Wilshire Blvd. Suite 715

Los Angeles, CA 90010

         Attorney for Plaintiff: William Silverstein                                          



CALIFORNIA SUPERIOR COURT

 

COUNTY OF LOS ANGELES

 

WILLIAM SILVERSTEIN,



                                     Plaintiff,


vs.

            

TJ WEB PRODUCTIONS, et al.


                                     Defendants,

 

 

 

 

Case No.: BC35733

         

PLAINTIFF’S DEMURRER OF THE ANSWERS OF DEFENDANT NINO ENTERPRISES

 

Date: August 25, 2006

Time: 8:30 a.m.

Dept: 42

Judge: Elihue M. Berle

 

Complaint filed:     May 22, 2006

 

Trial Date:              None set.

 

 

I. INTRODUCTION

 

      Plaintiff demurrers to each of the affirmative defenses in the amended answer of Defendant Nino Enterprises, Inc. on the grounds Defendant did not allege sufficient facts to plead its affirmative defenses and that the allegations in the answer are uncertain. Footnote

 

II. DEMURRER

 

1.         Plaintiff demurs to the first affirmative defense of failure to state facts sufficient to constitute a cause of action on the grounds that the cause of action stated in the Verified Second Amended Complaint for Damages and Injunctive Relief is a valid cause of action upon which relief can be granted, based on sufficient facts.

            The first cause of action is based on California Business & Professions Code § 17529.5. Plaintiff alleges that he received spams advertising Defendant’s websites. Plaintiff alleged that these complained of spams contain or is accompanied by falsified, misrepresented, or forged header information.

            If Plaintiff's verified complaint had failed to state a claim, Defendant should have raised the issue by demurrer. The cryptic pleading in the first affirmative defense does not specify what requirements, if any, Plaintiff failed to meet, or which violation of statute was not properly established, or which requested remedy is not authorized by law. Defendant has not pled any "new matter" in support of the first affirmative Defense and the legal conclusions expressed in the first affirmative defense lack specifics and are therefore uncertain.

 

 

2.         Plaintiff demurs to the second affirmative defense of “excessive fines” for failure to state a state facts sufficient to constitute a defense.

            The first cause of action is based on California Business & Professions Code § 17529.5. which has statutory fines. Defendant failed to plead any fact that establishes that the fines are excessive. In fact, Defendants failed to plead any "new matter" in support of the second affirmative defense and the legal conclusions expressed in the second affirmative defense lack specifics and are therefore uncertain.

 

3.         Plaintiff demurrers to the third affirmative defense of “Defendant maintains an anti-spamming policy” for failure to state a state facts sufficient to constitute a defense.

            Defendant fail to allege that it actually enforce the anti-spamming policy, as or take any action that prevents the illegal acts that are complained of. Defendants has not pled any "new matter" in support of this affirmative Defense and the legal conclusions expressed in the third affirmative defense lack specifics and are therefore uncertain.

 

 

4.         Plaintiff demurrers to the fourth affirmative defense of “third parties failed to exercise reasonable care.

            Defendants ignores that CB&PC § 17529.5 prohibits advertising using emails with falsified, misrepresented, or forged header information. Defendants are advertisers as defined under CB&PC § 17529.1(a). The cryptic pleading in the fourth affirmative defense does not identify the these mysterious third parties. Defendants failed to allege facts supporting its claim that some action of a third party resulted in the harm to Plaintiff. If there are other parties with liability for the damages, Defendants should implead them. Defendants have not pled any "new matter" in support of this affirmative defense and the legal conclusions expressed in the fourth affirmative defense lack specifics and are therefore uncertain.

 

 

5.         Plaintiff demurs to the defense of failure to mitigate on the grounds that the allegation is uncertain.

            Defendants’ answer does not state that it was possible for the Plaintiff to request that the illegal spamming to stop. Defendants’ answer does not state that any request for the illegal spamming to cease would be effective. Any Defendants relying upon a claim that Plaintiff failed to mitigate his damages must plead facts showing that Plaintiff could have mitigated damages. For example, Defendants fails to allege that any reasonable action would have resulted in actual mitigation. There are no facts alleged that suggests that Plaintiff had any opportunity to take steps to reduce the torrent of email from Defendant, except to the extent that he repeatedly notified Defendants that their spam was not wanted. Defendants has not alleged that any means existed by which Plaintiff could have otherwise mitigated his damages. In fact, Defendants failed to plead any "new matter" in support of the fifth affirmative defense and the legal conclusions expressed in this defense lack specifics and are therefore uncertain.

 

 

6.         Plaintiff demurs to the sixth affirmative defense of “activities were protected by the First, Fifth, and Fourteenth Amendments” on the grounds that the allegation is uncertain.

            The cryptic pleading in the sixth affirmative defense does how a law that requires truthfulness in commercial advertising violates the Defendants of rights to free speech. In fact, Defendants have not pled any "new matter" in support of this affirmative Defense and the legal conclusions expressed in the seventeenth affirmative defense lack specifics and are therefore uncertain.

 

 

 

 

 

 

Dated: July 19, 2006

 Respectfully submitted,

 

By:       _______________________________

F. Bari Nejadpour

Attorney for Plaintiff