1 Melbourne B.

Weddle, State Bar #34858

Patric H.R. Weddle, State Bar #201465
2 827 State St., #13
Santa Barbara, Ca. 93101
3 Telephone: (805) 966-1038
Facsimile: (805) 9669758
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Attorneys for Plaintiff Business Aircraft Sales Corporation.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SANTA BARBARA
10 KEN HILL, BUSINESS AIRCRAFT SALES CASE NO. 1342334
CORPORATION,
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Plaintiff,
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v. Date: February 10, 2011
13 Time: 9:30 a.m.
CITICORP USA, INC AND DOES 1-10, Court: 6
14 inclusive,, Judge: Hon. Denise de Bellefeuille
15 Defendants. Action Filed: March 8, 2010
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Defendant demurred to Plaintiff’s first amended unverified complaint on the
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basis that the Amended Complaint includes an updated statement of damages since
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20 the original filing. Defendant wrongfully attempts by highlighting the disparity in
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the separate billings and selectively and inappropriately using the Plaintiff’s
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declaration to assert matters outside the pleading. Defendant improperly uses
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24 judicial notice to fabricate by confusion an immaterial argument. There is no

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uncorrectable conflict there is rather a clarification in billing and a refinement of
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contractual intent. Any alleged discrepancy does not impair the substantial rights

28 of the parties for the purpose of a demurrer. Even if the matter raised were relevant

1342334
HILL OPPOSSTIPULATION AND [PROPOSED] ORDER TO CONTINUE TIME TO RESPOND TO
DEMURRER
 1 for attacking the pleading Defendant has applied an incorrect remedy. A motion to
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strike, although unnecessary, would have been more appropriate for Defendant’s
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4 purpose (Code Civ. Proc. § 431.10); the demurrer is clearly inappropriate.

5 Plaintiff asks the Court to overrule Defendant’s demurrer and order it to

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answer the first amended complaint or otherwise be susceptible to an entry of
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8 default. In the event the Court sustains the Defendant’s demurrer, Plaintiff
9 respectfully requests the court to allow Plaintiff to further plead the billing
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adjustments in the first amended complaint, and allow the Plaintiff leave to amend
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12 the complaint accordingly.

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Respectfully submitted,
15 Date: January 18, 2011
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___________________
20 Patric H.R.Melbourne B.
Weddle Attorney for
21 Plaintiff
BUSINESS AIRCRAFT SALES CORPORATION
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BASC
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1342334 2
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT
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POINTS AND AUTHORITIES IN SUPPORT OF
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OPPOSITION TO DEMURRER
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I. THE GENERAL DEMURRER SHOULD BE OVERRULED THE
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COMPLAINT STATES FACTS SUFFICIENT TO CONSTITUTE A CAUSE
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OF ACTION.
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A demurrer under Code of Civ. Proc. § 430.60 tests the pleading only. It tests
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neither the evidence nor matters extrinsic to the complaint. Aubry v. Tri City Hosp. Dist.
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(1992) 2 Cal. 4th 962, 966-967.
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1. Complaint States Causes of Action.
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A complaint is invulnerable to a general demurrer if on any theory it states a cause
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of action. Johnson v. Clark (1936) 7 Cal. 2d 529, 563). That is, all that is necessary as
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against a general demurrer is to plead facts showing that the Plaintiff may be entitled to
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some relief. The issues raised are that the two billings, (1) one discounted on the
15 condition of a timely payment and further work referral, the (2) a second billing when
16 discount was inapplicable and included missing work order and cost aspects. These facts
17 are irrelevant to the demurrer. The facts are merely incidental to the fact that under the
18 pleading, Plaintiff is entitled to some relief.
19 Defendant’s attempt to gain a windfall on its outstanding indebtedness is not
20 supported by the law. Under Defendant’s view no Plaintiff could ever state a cause of

21 action for breach of contract and promissory estoppel in order to recover amounts owing

22 to Plaintiff, if the Defendant made partial payments to Plaintiff. Ken Hill’s allegations
"fit within the classic model of a promissory estoppel claim." Kajima/Ray Wilson v. Los
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Angeles County Metropolitan Transportation Authority, (2000) 23 Cal.4th 305. Citicorp
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promised Ken Hill that it would make its payment to Ken Hill within 10 days of billing.
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Citicorp also promised that it would give Ken Hill additional business if Ken Hill would
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discount its charges to them on this occasion. Citi Corp. did not pay within 10 days and
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did not give Ken Hill any additional business. Citi Corp should have expected its promise
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1342334 3
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT
 1
to give additional business to Ken Hill would induce action by Ken Hill. Citicorp failed
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to pay Ken Hill within the promised time and failed to provide additional business to Ken
3 Hill without justification.
4 Promissory estoppel was developed to do rough justice when a party lacking
5 contractual protection relied on another’s promise to its detriment.’" Under Defendant’s
6 view no Plaintiff could ever state a cause of action for breach of contract and promissory
7 estoppel in order to recover amounts owing to Plaintiff because of the very fact that it
8 had made partial payments to Plaintiff. Citi Corp’s argument is illogical and contrary to

9 decades of cases. Garcia v. World Sav., FSB, 183 Cal.App.4th 1031,107 Cal.Rptr.3d 683

10 (2d Dist. 2010) (review denied June 23, 2010

2. Rule of Liberal Construction
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In the construction of a pleading, for the purpose of determining its effect, its
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allegations must be liberally construed, with a view to substantial justice between the
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parties (Code Civ. Proc § 452.) A complaint withstands a general demurrer, if, on
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consideration of all the facts stated, it appears that the Plaintiff is entitled to some relief,
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even if the facts are in artfully stated or intermingled with irrelevant facts or the complaint
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demands relief to which Plaintiff is not entitled under the facts alleged. In reviewing the
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sufficiency of complaint, appellate court treats demurrer as admitting all material facts
18 properly pleaded; demurrer does not lie to a portion of a cause of action; The complaint’s
19 allegations must be liberally construed, with view to substantial justice between parties.
20 Chazen v. Centennial Bank (1998) 61 Cal. App. 4th 532, 542, 71 Cal. Rptr. 2d 462.
21 Question of proof may not be resolved on a demurrer. All properly pleaded allegations
22 are taken as true even though their proof appears unlikely. Bach v. McNelis (1989) 207
23 Cal. App. 3d 852, 866, 255 Cal. Rptr. 232.

24 3. Common Counts Are Not Subject To Demurrer.

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Generally, claims alleged by common counts are not subject to demurrer. Farmers
Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460 (allegation of claim using
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common counts sufficient against general or special demurrers)]. As a general rule, a
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common count is not subject to a general demurrer Auckland v. Conlin (1928) 203 Cal.
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1342334 4
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT
 1
776, 777. Defendant cites no legal authority which would be an exception to this general
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rule. Plaintiff is clearly entitled to recover under one or more counts in the complaint.
3 The common count is not an alternative way of seeking the same recovery.
4 A. Cause of Action Alleged Under Facts Stated
5 If on a consideration of all facts stated, it appears that the Plaintiff is entitled to any
6 relief at the hands of the court against the Defendant, the complaint will be upheld.
7 Although the differences between the first complaint and the amended complaint have
8 differing facts alleged as to a final accounting taken at different times, the changes do not

9 go to the crux of the amended complaint’s sufficiency.

10 When a complaint contained factual ambiguity which if construed one way

supported trial court’s ruling sustaining demurrer without leave to amend, but
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construed another way showed trial court was incorrect in its ruling, and complaint
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otherwise contained no fatal defects and could easily been amended to cure
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ambiguity and state claim on which relief could be granted, trial court committed
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reversible error in sustaining demurrer without leave to amend. CrossTalk
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Productions, Inc. v. Jacobson (1998) 65 Cal. App. 4th 631, 635, 649, 76 Cal. Rptr.
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2d 615
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B. Cause of Action Alleged Despite Irrelevant Facts
18 If on consideration of all the facts stated it appears that the Plaintiff is entitled
19 to any relief at the hands of the court against the Defendant, the complaint will be
20 held good, although the facts may be intermingled with a statement of other facts
21 irrelevant to the cause of action shown. It is proper for the Plaintiff to allege his
22 own construction. So long as that construction is not clearly erroneous, the court
23 will accept the Plaintiff’s allegations as true. Aragon-Hass v. Family Security Ins.
24 Serv. Inc. (1991) 231 Cal. App.3d 232, 239

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C. Cause of Action Alleged Despite Demand for Wrong Relief
If on a consideration of all the facts stated it appears that the Plaintiff is
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entitled to any relief at the hands of the court against the Defendant, the complaint
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will be held good, although the Plaintiff may demand relief to which he or she is
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1342334 5
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT
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not entitled under the facts alleged. Mistaken labels are not fatal. Porter v. Univ.
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of San Francisco (1976) 64 Cal.App. 3d 825, 833.
3 D. Disregard of Non prejudicial Defect
4 A court is required, in every stage of an action, to disregard any defect in the
5 pleadings that in the opinion of the court does not affect the substantial rights of the
6 parties Code Civ. Proc. ss 475; Gressley v. Williams (1961) 193 Cal. App. 2d 636,
7 639. A demurrer is not the appropriate procedure for determining the truth of
8 disputed facts or what inferences should be drawn when competing inferences are
9 possible. The court gives the complaint a reasonable interpretation, reading it as

10 whole and its parts in context. If there is a reasonable possibility that the defect can
be cured by amendment; the complaint must be liberally construed with view
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towards substantial justice between parties. CrossTalk Productions, Inc. v.
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Jacobson (1998) 65 Cal. App. 4th 631, 635.
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E. Plaintiff Is Entitled to Correct Erroneous Allegations of Generic Terms
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that May Have Legal Implications
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16 The declaration of Plaintiff in support of the amended complaint explains why the
17 billing against Defendant was corrected. Additional facts for unbilled items and the fact
that a discount offered was conditional to timely payment and/or further promised contract
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referral. Since the terms for the discount were not followed then the regular rates applied.
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In addition upon further review the initial billing of Defendant, irrespective of the
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application of a discount was incomplete and needed to be factually amended. Citicorp
21 made a clear and definite promise to the Plaintiff that it would give Plaintiff significant
22 additional business if Plaintiff gave a discounted rate on the repossession of the aircraft
23 described in the complaint; Plaintiff justifiably relied on Citicorp’s promise, Plaintiff’s
reliance was substantial and of a definite character in that Citicorp was given a significant
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discount on Plaintiff’s services and enforcing Citicorp’s promise will serve the best
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interests of justice. Garcia v. World Sav., FSB, 183 Cal.App.4th 1031,107 Cal.Rptr.3d
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683 (2d Dist. 2010) (review denied June 23, 2010. [Conditional promise does not
27 render the promise unenforceable or ambiguous]
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1342334 6
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT
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The rules of pleading are conveniences to promote justice not to impede or
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warp it. Any change Plaintiff made as to legal theory of recovery was by amending
3 the complaint by omitting factual allegations that are irrelevant and immaterial to
4 the new legal theories or theory of recovery asserted. The alleged different legal
5 theory of recovery is based on essentially the same set of general facts as set out in
6 superseded pleadings. The prior omitted allegations, even if deemed true and even
7 if read into a amended complaint, are immaterial to the legal theories set out in the
8 amended complaint and thus prior factual allegations did not undermine or destroy
9 causes of action in that complaint. Berman v. Bromberg (1997) 56 Cal. App. 4th

10 936, 946–949, 65 Cal. Rptr. 2d 777.

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Plaintiff’s failure to plead what extrinsic evidence will be offered to prove
12 the meaning of alleged ambiguous instrument did not prevent Plaintiff from
13 contending on appeal that demurrer should not have been sustained because
14 extrinsic evidence would have been admissible to assist in interpretation of
15 contract; when ambiguous contract is attached and incorporated into complaint,
16 party pleading an alleged ambiguous contract is required only to allege in the
17 complaint the meaning that the party ascribes to the contract. Southern Pacific
18 Land Co. v. Westlake Farms, Inc. (1987) 188 Cal. App. 3d 807, 816–817, 233 Cal.
19 Rptr. 794
General rule is that, if instrument sued on is allegedly ambiguous, party
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pleading it must set forth its meaning and that meaning attributed to it must be one
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to which it is reasonably susceptible; if pleaded instrument is susceptible to more
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than one construction as to its nature or purpose intended by parties, construction of
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party pleading is to be accepted, if reasonable, in considering sufficiency of
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pleading attacked by general demurrer. Connell v. Zaid (1969) 268 Cal. App. 2d
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788, 794–795, 74 Cal. Rptr. 371
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Demurrer tests the pleading alone and not evidence or other extrinsic matters
27 that do not appear on face of pleading or cannot be properly inferred from factual
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1342334 7
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT
 1
allegations of complaint; this principle means that, if pleading sufficiently states
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cause of action, demurrer cannot be granted on basis of showing of extrinsic
3 matters by inference from attached exhibits, affidavits, or otherwise, except those
4 matters that are subject to judicial notice; court cannot give judicial notice to truth
5 of assertions in declarations or affidavits filed in court proceedings. Bach v.
6 McNelis (1989) 207 Cal. App. 3d 852, 864–865, 255 Cal. Rptr. 232 (emphisis
7 added)
8 Thus for the foregoing reason the demurrer should be overruled.
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Respectfully submitted,
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Date: January 18, 2011
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16 ___________________
17 Patric H.R.Melbourne B.
Weddle Attorney for
18 Plaintiff
BUSINESS AIRCRAFT SALES CORPORATION
19 BASC
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1.
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Dated: January 10, 2011 MELBOURNE B. WEDDLE
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By:
25 MELBOURNE B. WEDDLE
Attorney For Plaintiff BASC
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1342334 8
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT
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[PROPOSED] ORDER
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Plaintiff KEN HILL, BUSINESS AIRCRAFT SALES CORPORATION (“BASC”), for himself
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and) Defendant CITICORP USA, INC for itself having stipulated, and good cause appearing
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therefore, it is HEREBY ORDERED that:
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1. The hearing on Defendant’s demurrer to Plaintiff’s amended complaint shall be
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continued to March 3, 2010 at 9:30 a.m.;
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2. The date for filing the opposition and the reply shall be based upon the Code of
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Civil Procedure and the continued hearing date of March 3, Plaintiff shall not take Defendants’
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default at any time before February 22, 2011;
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3. and all documents will be served on counsel by electronic mail or facsimile, and
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that service by electronic mail or facsimile will constitute hand service.
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DATED:
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Judge of the Santa Barbara Superior Court
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1342334 9
HILL OPPOSITION DEMURRER 1ST AMENDED COMPLAINT