Plaintiff's Opposition To Motion To Dismiss 9.18 Test

1 Joseph R. Manning, Jr., Esq. (State Bar No.
223381)
THE LAW OFFICES OF JOSEPH R. MANNING, JR.
2 A PROFESSIONAL CORPORATION
450 Newport Center Drive, Ste. 200
3 Newport Beach, California 92660
(949) 285-4532
4 (866) 843-8308
Email: Joe@ManningLawOffice.com
5 Attorneys for PLAINTIFF GROUP ISO, INC.
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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GROUP INDEPENDENT SALES CASE NO. SACV 08-00703AHS
11 ORGANIZATION, INC., A (Shx)____
Nevada corporation
12 Plaintiff, PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ MOTION TO
13 vs. DISMISS FOR FAILURE TO STATE
A CLAIM [F.R.C.P. 12(B)(6)],
14 GLOBAL ISO, LLC, A Nevada IMPROPER VENUE [F.R.C.P. 12(B)
limited liability company, and (1), (3), (6), AND 28 U.S.C. § 1406(A)],
15 DANIEL BRASOV, IRASEMA OR, ALTERNATIVELY, TO
BRASOV, and WENDY COMPEL ARBITRATION [F.R.C.P.
16 CARILLO, Individuals, and DOES 12(B)(1), (2), (3), (6), OR
1 through 10, inclusive. ALTERNATIVELY, MOTION TO
CENTER DRIVE, STE. 200LAW OFFICES OF JOSEPH R. MANNING, JR., ESQ. APC
17 STRIKE PORTIONS OF THE

Defendants. “CORRECTED COMPLAINT”
18 UNDER RULE 12(F) AND FOR A
MORE DEFINITE STATEMENT
19 [F.R.C.P. 12(E)
20 [Filed concurrently with Objection to
Defendants’ Request for Judicial
21 Notice]
22 Date: October 6, 2008
Time: 10:00 a.m.
23 Judicial Officer: The Honorable
Alicemarie Stotler
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PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS, OR IN THE ALTERNATIVE TO COMPEL
ARBITRATION, OR IN THE ALTERNATIVE STRIKE OR FOR A MORE DEFINITE STATEMENT
1 TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD:
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Plaintiff, Group Independent Sales Organization, Inc. doing business as
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4 GROUP ISO ("GROUP ISO"), (sometimes referred to herein as "Plaintiff")
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hereby opposes Defendants Global ISO LLC ("GLOBAL ISO"), Daniel Brasov
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("BRASOV"), Irasema Brasov and Wendy Carillo’s (collectively referred to
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8 herein as "Defendants") Motion to Dismiss, or in the alternative, Motion to
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Compel Arbitration, or in the alternative, Motion to Strike and for a More
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Definite Statement, as follows:
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1 MEMORANDUM OF POINTS AND AUTHORITIES
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I. INTRODUCTION
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4 Defendants attempt to paint Plaintiff “overly disgruntled” and
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characterize Plaintiff as engaging in “protracted and multiplicitous bad-faith
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litigation” and “vexatious litigation tactics” against Defendants in attempt to
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8 drive Defendants out of business. (Motion to Dismiss, at 1:15, 17-19, and 27)
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Apparently unconcerned about losing credibility with the Court right out of the
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gate, Defendants fail to mention at the same time that in the prior litigation or
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12 arbitration proceedings between the parties, in each case (there are 2),
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Defendants either initiated the action, or in the case of the arbitration,
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15 Defendants stipulated to arbitrate selected matters.
16 Furthermore, and consistent with the Defendants’ arguments so far in this

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case, Defendants fail to mention anywhere in the Motion to Dismiss that the
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19 release executed by the parties at the conclusion of the state court case
20 contained an express limitation that clearly places the present action outside
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the scope of the release – despite the fact that it was discussed by counsel in
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23 detail when counsel met and conferred prior to the time when Defendants filed
24 this motion.
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1 As it concerns Defendants’ claim that Plaintiff failed to comply with
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Local Rule 83-1.3.1, Plaintiff understands that rule to apply to actions filed or
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4 pending in the Federal District Court for the Central District of California. As
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no such claims exist, no Notice of Related Cases was filed by Plaintiff.
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Succinctly put, as discussed fully in this Opposition, Defendants motion
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8 is based on a twisted, selective and disingenuous interpretation of the prior
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litigation between the parties and of the Settlement and Release Agreement
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between the parties and should be denied.
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12 Should the Court deem the Settlement and Release Agreement
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appropriate for consideration at this stage of the proceedings, and in the context
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15 of this motion, by virtue of Judicial Notice or otherwise, Plaintiff is confident
16 that a faithful reading of the plain text of the release will expose each of
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Defendants’ contentions asserted in support of the Motion to Dismiss as
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19 completely without foundation.
20 It should be noted that Plaintiff does concede that the Fourth Cause of
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Action is based on a statute repealed in 2008 and therefore, as pled, fails to state
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23 a claim. It is for this reason that, as to that cause of action alone, Plaintiff does
24 not oppose the motion to dismiss and instead asks only for leave to amend to
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1 reflect the newly-enacted statute. A stipulation to this effect has been executed
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and filed by the parties as required by Local Rule 7-1.
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4 Accordingly, Plaintiff respectfully requests that the Court deny
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Defendants’ Motion. To the extent that the Court is inclined to grant the
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motion, Plaintiff requests that the Court provide it with leave to amend the
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8 Complaint.
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II. DEFENDANTS’ CLAIMS FOR DISMISSAL ARE
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WITHOUT MERIT
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12 In ruling on a motion to dismiss, the Court must accept all material
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allegations of fact alleged in the complaint as true and resolve all doubts in
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15 favor of Plaintiff. (Pareto v. F.D.I.C., 139 F. 3d 696, 699 (9th Cir. 1998)). As
16 such, “[t]he motion to dismiss for failure to state a claim is viewed with
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disfavor and is rarely granted.” (Gilligan v. Jamco Develop. Corp., 108 F. 3d
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19 246, 249 (9th Cir. 1997)(emphasis in original)) Finally, a complaint need not set
20 forth all relevant facts or recite the law, all that is required is a short and plain
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statement showing the party is entitled to relief. (Fed. R. Civ. P. 8(a)(2)) Here,
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23 Plaintiff has met the requirements for pleading.
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1 A. THE SETTLEMENT AND RELEASE AGREEMENT IS
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NOT PROPERLY CONSIDERED IN THE CONTEXT OF
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4 THIS MOTION
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Defendants’ argument that the Settlement and Release Agreement may
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be considered by the Court pursuant to the “incorporation by reference”
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8 doctrine is premised essentially on the argument that the release is a
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“dispositive document on which [the complaint] relied.” (Motion to Dismiss, at
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9:25-27 citing Pension Benefit Guar. Corp. v. White Consolidated Industries,
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12 Inc. 998 F. 2d 1192, 1196 (3rd Cir. 1993)) That however, is not the case.
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Indeed, Plaintiff’s claims do not rely on any release. Defendant conveniently
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15 ignores that Federal Rule of Civil Procedure, 8(c)(1) defines “release”, and
16 “waiver” for that matter, as affirmative defenses. Each of these affirmative

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defenses are matters that, by definition, raise new facts that if true would bar a
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19 complaint, even if the allegations of the complaint are true. (Saks v. Franklin
20 Covey Co. 316 F. 3d 337, 350 (2nd Cir. 2003)) Again therefore, by definition, the
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presence or absence of a release or of waiver is not something upon which
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23 Plaintiff relied to plead its case in the Complaint.
24 Beyond that, the Settlement and Release Agreement referenced by
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Defendant is not mentioned or alleged in the Complaint. The sole, indirect,
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1 reference to the prior litigation in the Complaint (and not to the Settlement and
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Release Agreement) is in paragraph 23 where it states that “Plaintiff and
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4 Defendant previously resolved certain infringing actions[.]” (Complaint, at 8, ¶
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23) This reference is not a fact, or “dispositive document,” upon which the
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Complaint relies. This indirect reference to resolution of “certain infringing
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8 actions” also does not meet the standard set forth in the Ninth Circuit in Branch
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v. Tunnel (9th Cir. 1994) 14 F. 3d 449, 454 (overruled on other grounds in
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Galbraith v. County of Santa Clara (9th Cir. 2002) 307 F. 3d 1119, 1127), a case
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12 relied upon by Defendants, but one that does not support their arguments. The
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Branch court stated “we hold that documents whose contents are alleged in a
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15 complaint and whose authenticity no party questions, but which are not
16 physically attached to the pleading, may be considered in ruling on a Rule 12(b)

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(6) motion to dismiss.” Branch (9th Cir. 1994) 14 F. 3d 449, 454 (emphasis
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19 added). Again, the contents of the Settlement and Release Agreement are not
20 alleged in the Complaint, nor do they need to be to state a claim. Accordingly,
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the Court should decline to invoke the “incorporation by reference” doctrine in
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23 this case, as it clearly does not apply.
24 B. THE COMPLAINT SEEKS RELIEF EXPRESSLY OUTSIDE
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THE SCOPE OF THE RELEASE
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1 If the Court reaches the text of the Settlement and Release Agreement it
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will find the following:
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5. Release. (a) For good and valuable consideration, the Parties hereto,
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for themselves and for each of their respective principals, agents,
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8 partners, joint venturers, affiliates, subsidiaries, parent and affiliated
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corporations, insurers, representatives, beneficiaries, successors,
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grantees, vendees, transferees, and assigns, hereby fully and irrevocably
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12 releases, acquits, and discharges each other, and their respective past,
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present, and future directors, officers, employees, agents, partners, joint
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15 venturers, affiliates, representatives, insurers, attorneys, subsidiaries,
16 parent and affiliated corporations and/or other entities, predecessors,

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successors, beneficiaries, grantees, vendees, transferees, and assigns
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19 (hereinafter, collectively the “Related Persons”) of and from any and all
20 liabilities, claims, cross-claims, causes of action, damages, costs
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(including costs of suit and attorney’s fees and expenses), or demands, of
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23 whatever nature, character, type, or description, whether known or
24 unknown, existing or potential, or suspected or unsuspected, which the
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Parties hereto, and each of them, have or assert, or may hereafter have or
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1 assert, against each other, or against any of the Related Persons by
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reason of any act or omission on the part of the Parties hereto, or on
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4 the part of any of the Related Persons, occurring at any time prior to
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the Effective Date of the Agreement (as defined below), which
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liabilities, claims, causes of action, damages, costs, or demands of
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8 whatever nature, character, type, or description are based upon, arise out
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of, are alleged in or could have been alleged in, or relate in any way to
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the Action or Cross-Action.
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12 Settlement and Release Agreement, ¶5(a).
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15 Paragraph 5 of the Settlement and Release, contains the text of the
16 release itself. To paraphrase, the release operates to release the following

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persons and claims:
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19 1) The Parties and related Persons;
20 2) For all claims; arising,
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3) By reason of any act or omission on the part of the Parties
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23 occurring at any time prior to the Effective Date of the Agreement.
24 The Settlement and Release Agreement further contains a California
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Code of Civil Procedure, Section 1542 waiver, which by definition operates to
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1 waive the rights afforded under that section. That section reads as follows:
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4 A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
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THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
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HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
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8 WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY
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AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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12 By definition, a waiver of Code of Civil Procedure, Section 1542
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operates to modify the release. The modification accomplished by the waiver is
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15 to increase the scope of the release in derogation of Code of Civil Procedure,
16 Section 1542. The waiver of Code of Civil Procedure, Section 1542 does not
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modify the temporal limitation expressly included in the release which limits
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19 the effect of the release to claims that may be asserted “by reason of any act or
20 omission on the part of the Parties hereto, or on the part of any of the Related
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Persons, occurring at any time prior to the Effective Date of the Agreement.”
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23 Further, in recognition of this, the paragraph containing the waiver of Section
24 1542 acknowledges that it is subject to the terms and conditions of the
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Agreement, which include the Release found in Section 5(a):
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1 Subject to the terms and conditions of Agreement, each of the Parties
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hereto expressly waives the benefit of California Civil code Section
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4 1542, which is set forth below.
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(Settlement and Release Agreement, ¶5(b)) The Complaint is outside the scope
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8 of the release as it seeks redress for infringing conduct occurring after the
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Effective Date as further described in C. below
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C. APPLICATION OF THE RELEASE
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12 By its express terms the release in this matter contains an explicit time
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restriction on its scope such that it is limited to claims that are asserted “by
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15 reason of any act or omission on the part of the Parties hereto, or on the part of
16 any of the Related Persons, occurring at any time prior to the Effective Date
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of the Agreement.” (Settlement and Release Agreement, ¶5(a)) The release at
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19 issue in this matter is virtually identical to the release at issue in Applied
20 Genetics International, Inc. v. First Affiliated Securities, Inc.. 912 F.2d 1238
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(10th Cir. 1990).
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23 The Applied Genetics Court addressed the issue of whether a grant of
24 summary judgment barring claims that arose after an express time limitation
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contained in a release that otherwise contained broad language, including
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1 language that could be interpreted as prospective. The exact language of that
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release is as follows:
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AGI hereby fully and forever remises, releases and discharges AFC and
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FAS . . . from any and all claims, known or unknown, suspected or
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8 unsuspected, of whatever kind or nature, in law, equity or otherwise,
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which it has, had, may have had, or hereafter can, shall or may have
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against the FAS Releasees for or by reason of any fact, matter, contract,
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12 right, law, circumstance, cause or thing to and including the date hereof
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arising out of or pertaining in any way to the Underwriting Agreement
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15 and the Oral Agreement.
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(Applied Genetics International, Inc. (10th Cir. 1990) 912 F.2d 1238, 1240)
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19 The Applied Genetics Court reversed the grant of summary judgment,
20 stating:
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23 POST-SETTLEMENT CLAIMS
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Granting summary judgment on the issue of the post-settlement claims
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26 was also error. Relying on the language that AGI "released and
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1 discharged AFC and FAS . . . from any and all claims . . . arising out of
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or pertaining in any way to the Underwriting Agreement," the district
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4 court found that the release was definite and clearly stated the parties'
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intention to bar all claims no matter when they arose. However, the court
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neglected to interpret the phrase "to and including the date hereof" which
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8 provides an explicit time restriction on the scope of the Settlement and
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Release Agreement. In general, a release only covers matters expressed
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therein which are in existence at the time the release is executed and does
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12 not cover subsequent claims. See, e.g., In re Vehm Eng'g Corp., 521 F.2d
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186, 188 (9th Cir. 1975) (citing 76 C.J.S. Release § 53) (release from "all
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15 claims of any kind, nature and description, known or unknown, from the
16 beginning of the world to date" did not cover subsequent claim);

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Broadview Chemical Corp. v. Loctite Corp., 406 F.2d 538, 541 (2d Cir.),
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19 cert. denied, 394 U.S. 976, 22 L. Ed. 2d 755, 89 S. Ct. 1472 (1969). …
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… …
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22 Here, the phrase "to and including the date hereof" limits the scope of the
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release to claims arising prior to, or contemporaneously with, the
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25 execution of the release. Because "claim" is defined to include "contract"
26 as well as claims and causes of action, the Settlement and Release

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1 Agreement releases FAS from any contractual obligation it may have
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owed to AGI prior to the date of the release as well as any other causes of
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4 actions that may have arisen prior to that time. However, causes of action
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or contractual obligations that arise after the date of the release are, by
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the terms of the Settlement and Release Agreement, not released.
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8 Therefore, summary judgment is not proper as to the issue of post-
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settlement claims.
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(Applied Genetics International, Inc. (10th Cir. 1990) 912 F.2d 1238, 1245
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(emphasis added.))
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15 The same analysis applies in this case where the release at issue also
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contains an explicit time restriction. Given the express and explicit time
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restriction contained in the Settlement and Release Agreement, and in particular
19 in the context of this disfavored motion where all doubts are resolved in favor
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of the Plaintiff, Plaintiff urges the Court to deny the motion to dismiss.
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22 III. THE AGREEMENT TO ARBITRATE IN THE
23 SETTLEMENT AND RELEASE AGREEMENT IS LIMITED

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IN SCOPE AND DOES NOT EMBRACE THE ISSUES
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26 RAISED IN THE COMPLAINT
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1 In keeping with Defendant’s twisted, selective and disingenuous
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interpretation of the prior litigation between the parties and of the Settlement
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4 and Release Agreement between the parties, Defendant completely
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misrepresents the scope of the agreement to arbitrate between the parties in
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seeking an order to compel arbitration of this dispute. (Motion to Dismiss, at
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8 16-17) Particularly telling in this regard is the fact that Defendant does not
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quote the paragraph of the Settlement and Release Agreement that contains the
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stipulation to arbitrate between the parties. (Settlement and Release
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12 Agreement, ¶4)
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That paragraph reads as follows:
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16 4. Agreement to arbitrate. The Parties hereto acknowledge that they are
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unable to agree as to the resolution of the Cross-complainant Group
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19 Independent Sales Organization, Inc.’s claim to ownership of the uniform
20 resource locator (“URL”) commonly known as www.GISO.com (“the
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URL”) and further as to Group Independent Sales Organization, Inc.’s
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23 claim of right to the trademark – “GISO” with all the rights due the
24 holder of that trademark. Accordingly, the Parties hereto agree to submit
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the issue of the entitlement to ownership and control of the URL and
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1 Trademark rights (pertaining to “GISO”) to binding arbitration in Orange
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County, California at JAMS in Orange County pursuant to its
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4 Comprehensive Arbitration Rules and Procedures. Claims to the URLs
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contained in Exhibit “B” hereto shall be also addressed through binding
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arbitration in the same manner and in the same proceeding as GISO.com.
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8 Arbitration shall be commenced, if at all, within six (6) months from the
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date of the Agreement. The Parties hereto shall promptly select an
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arbitrator. If the parties are unable to select an arbitrator, the Court shall
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12 select an arbitrator pursuant to its power to enforce the terms of the
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Agreement as requested by the Parties hereto pursuant to Code of Civil
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15 Procedure section 664.6. The arbitrator may, in the award, allocate all or
16 part of the costs of arbitration, including the fees of the arbitrator and the
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reasonable attorney’s fees of the prevailing party. Judgment on the
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19 award may be entered in any court having jurisdiction. The Parties
20 hereto intend the Release contained in paragraph 5 below to be subject to
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the agreement to arbitrate contained in this paragraph 4.
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24 The parties agree through this arbitration process to address and dispose
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of all present claims, pertaining to URL’s on Exhibit B, which might be
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1 brought in either the state or federal courts or any other court of
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competent jurisdiction.
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The parties to this agreement shall state their consent to arbitrate the
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disputes referred to in this section of the Agreement by signing the
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8 Stipulation for Arbitration which is Addendum “A” to this Agreement.
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(Settlement and Release Agreement, ¶4)
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12 The Stipulation to Arbitrate referenced in paragraph 4 above, states:
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15 IT IS STIPULATED AND AGREED by the Parties to this Settlement
16 and Release Agreement to submit all disputes, claims and controversies

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over the ownership and use of the URL’s, contained in Exhibit B to this
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19 agreement, to neutral, binding arbitration at JAMS of Orange County,
20 California, pursuant to the JAMS Administrative Policies and, unless
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otherwise agreed to in writing by the parties, to the applicable JAMS
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23 Arbitration Rules and Procedures. The Parties hereby agree to give up
24 any rights they might possess to have this matter litigated in a court or
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jury trial.
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(Settlement and Release Agreement, Addendum “A”)
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4 A plain reading of the “Agreement to arbitrate” makes clear that this
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agreement is limited to “ownership of the uniform resource locator (“URL”)
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commonly known as www.GISO.com (“the URL”) and further as to Group
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8 Independent Sales Organization, Inc.’s claim of right to the trademark –
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“GISO” with all the rights due the holder of that trademark.” (Id. at ¶4.) In
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light of this, the parties “agree to submit the issue of the entitlement to
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12 ownership and control of the URL and Trademark rights (pertaining to “GISO”)
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to binding arbitration in Orange County, California.” (Id. at ¶4.)
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15 The Complaint in this action does not mention the GISO service mark or
16 seek relief related to same. Further, the Complaint does not seek relief related
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to the GISO uniform resource locator or mention the same. These are the issues
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19 the parties agreed to arbitrate. The relief sought in the Complaint relates to the
20 “GROUP ISO” service mark. That mark is not referenced in any manner in the
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Agreement to Arbitrate or the Stipulation to Arbitrate above. The GROUP ISO
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23 mark is a separate and distinct federally registered mark for which Plaintiff
24 obtained registration In November 2007, after the September 2007 Release and
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Settlement Agreement was executed by the parties.
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1 Defendants have no basis for their assertion that “Group ISO Agreed to
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Arbitrate Future Trademark Right Claims.” (Motion to Dismiss, at 6:13)
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4 Further, Defendants deliberately quote from the Settlement and Release
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Agreement in a misleading manner when they quote from the Agreement to
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Arbitrate, but omit key words to alter the apparent meaning of the agreement.
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[t]he Parties hereto agree to submit the issue of the entitlement to
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ownership and control of the … Trademark rights … to binding
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12 arbitration[.]
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15 (Motion to Dismiss, at 6:19-21)
16 The actual language from the Agreement to Arbitrate clearly limits any
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arbitration of Trademark rights to right related to the mark GISO. First, the
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19 trademark rights at issue in any arbitration are identified as “Group Independent
20 Sales Organization, Inc.’s claim of right to the trademark – “GISO” with all the
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rights due the holder of that trademark.” (Settlement and Release Agreement,
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23 ¶4) Next, and consistent with the limitation to the GISO mark, the parties
24 agreed to arbitrate “Trademark rights (pertaining to “GISO”).” (Id.) As a
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result, Defendants’ motion to compel arbitration must fail because the
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1 Agreement to Arbitrate clearly does not embrace the current action and the
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infringement claims of Group ISO related to its GROUP ISO mark.
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4 IV. THE COMPLAINT RELATES TO CONDUCT EXPRESSLY
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EXCLUDED FROM THE SCOPE OF THE RELEASE AND
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THE AGREEMENT TO ARBITRATE; THE PRESENT
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8 VENUE IS THE PROPER VENUE; THE STATE COURT
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LACKS SUBJECT MATTER JURISDICTION
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Venue is proper in this matter is proper in the Central District of
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12 California, pursuant to 28 U.S.C. '1391(b), and (c). Here, Defendants seek to
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convert this action into one to enforce the terms of the Settlement and Release
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15 Agreement. That is not the gravamen of this action. This action seeks damages
16 and equitable relief for various acts and omissions of the Defendants that are
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outside the express terms of the Settlement and Release Agreement and its
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19 Agreement to Arbitrate. (Settlement and Release Agreement, ¶4 and Addendum
20 “A”). The only potential relevance of the Settlement and Release Agreement to
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the present action is whether Defendants will, at the appropriate time; attempt to
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23 assert its release as an affirmative defense to the Complaint.
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Further, Defendants conveniently fail to point out that a motion to
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enforce the Settlement Agreement to California Code of Civil Procedure
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1 Section 664.6 was clearly not intended by the Parties to vest jurisdiction in the
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state court. Indeed, the Settlement and Release Agreement calls for the
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4 dismissals with prejudice of the action and cross-action. (Settlement and
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Release Agreement, ¶1 and 2). The impact of such a dismissal is clear, it
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deprives the court of subject matter jurisdiction, and a motion under California
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8 Code of Civil Procedure Section 664.6 will not lie. Viejo Bancorp, Inc. v.
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Wood (1989) 217 Cal. App. 3d 200, 265 Cal. Rptr. 620. Accordingly, venue
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here does not lie with the state court and the motion to dismiss for improper
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12 venue must be denied.
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V. THE SCOPE OF THE ARBITRATION AGREEMENT IS
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15 CLEAR AND THIS ACTION IS OUTSIDE THAT SCOPE;
16 THE STATE COURT HAS NO JURISDICTION AND IS

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NOT AN AVAILABLE FORUM AFTER DISMISSAL AS
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19 REQUIRED BY THE SETTLEMENT AGREEMENT
20 As discussed in detail above, the California Code of Civil Procedure
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Section 664.6 clause was not a forum selection clause and the state court lacks
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23 subject matter jurisdiction after the dismissals with prejudice contemplated in
24 the Settlement and Release Agreement. (See supra § IV) In the case of the
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Arbitration Agreement, its scope is clearly limited to matters not addressed in
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1 the Complaint. (See supra § III) Accordingly, the motion to dismiss based on
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failure to observe a forum selection clause must be denied.
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4 VI. THE MOTION TO STRIKE
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This section addresses the items Defendants request that the Court Strike
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from the Complaint in the order that they are raised in the Defendants’ Motion.
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8 (Motion to Dismiss, at ¶G) Plaintiff urges the Court to deny the motion as
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except as to those items or categories to which there is no opposition. As to the
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unopposed items or categories, Plaintiff will discuss entry of a Stipulation to
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12 Strike and/or to Amend with Defense counsel pursuant to Local Rule 7-1.
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A. ACCOUNTING
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15 The Ramona Manor Convalescent Hosp. v. Care Enteprises (1986) 177
16 Cal. App. 3d 1120, 225 Cal. Rptr. 120 case does not support the proposition for
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which it is cited. This case does not discuss the issue of whether an accounting
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19 is available and the motion to strike must be denied on this issue.
20 B. ATTORNEYS’ FEES
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Plaintiff requests leave to amend to seek attorneys’ fees as allowed by
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23 law.
24 C. UNFAIR TRADE PRACTICES REMEDIES
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1 Plaintiff requests leave to amend the Complaint as to the Third Cause of
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Action for Unfair Trade Practices to seek remedies as allowed by law.
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4 D. NEGLIGENT INTERFERENCE
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Plaintiff requests leave to amend to seek remedies as allowed by law.
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8 VII. THE MOTION FOR MORE DEFINITE STATEMENT IS
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DISFAVORED AND MUST BE DENIED
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The Complaint exceeds the standard for pleading set forth in Fed. R. Civ.
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12 P. 8(a)(2) which requires only a short and plain statement showing the party is
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entitled to relief. Further, this motion is disfavored and rarely granted. (In re
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15 American Int’l. Airways, Inc. (ED PA 1986) 66 BR 642, 645) The conclusory
16 nature of this part of the motion, lacking any detail or analysis, also indicates
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that it is made only as boilerplate, that it is not worthy of substantial
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19 consideration, and should be denied.
20 DATED: September 18, 2008 Law Offices of Joseph R. Manning, Jr.
21 A PROFESSIONAL CORPORATION
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_________________________________
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24 By:__________________________
JOSEPH R. MANNING JR.
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Attorneys for Plaintiff
26 GROUP INDEPENDENT SALES
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1 ORGANIZATION, INC. dba GROUP
2 ISO
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Plaintiff's Opposition To Motion To Dismiss 9.18 Test

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Plaintiff's Opposition To Motion To Dismiss 9.18 Test

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1 Joseph R. Manning, Jr., Esq. (State Bar No.

17 STRIKE PORTIONS OF THE

16 Furthermore, and consistent with the Defendants’ arguments so far in this

16 “waiver” for that matter, as affirmative defenses. Each of these affirmative

16 physically attached to the pleading, may be considered in ruling on a Rule 12(b)

16 parent and affiliated corporations and/or other entities, predecessors,

16 release itself. To paraphrase, the release operates to release the following

16 beginning of the world to date" did not cover subsequent claim);

26 as well as claims and causes of action, the Settlement and Release

23 SETTLEMENT AND RELEASE AGREEMENT IS LIMITED

16 and Release Agreement to submit all disputes, claims and controversies

16 THE STATE COURT HAS NO JURISDICTION AND IS

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