1 JAKRUN S SODHI SBN 200851 OUR FILE NO AMC2 52041 2 CURTIS ARATA A Professional Corporation 3 1300 K Street Second Floor P O Box 3030 4 Modesto CA 95353

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1 JAKRUN S SODHI SBN 200851 OUR FILE NO AMC2 52041 2 CURTIS ARATA A Professional Corporation 3 1300 K Street Second Floor P O Box 3030 4 Modesto CA 95353 Powered By Docstoc
					 1   JAKRUN S. SODHI, SBN 200851
     OUR FILE NO. AMC2.52041
 2   CURTIS & ARATA
     A Professional Corporation
 3   1300 K Street, Second Floor
     P.O. Box 3030
 4   Modesto, CA 95353
     Telephone: (209) 521-1800
 5   Facsimile:   (209) 572-3501

 6   Attorneys for Plaintiff AMERICAN MOTOR CITY
 7

 8
                SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
 9

10

11
     AMERICAN MOTOR CITY,                         Case No.   6 3 25 4 0
                                                  COMPLAINT FOR DAMAGES:
12                       Plaintiff,
                                                  [Unlimited Jurisdiction - Damages
13   v.                                           exceed $25,000]
14
                                                  (1) Breach of Contract;
     CROWS LANDING AUTO CENTER,
15   AMEL MOHAMMAD ATALLA, individually,          (2) Breach of Fiduciary Duty;
     and dba CROWS LANDING AUTO 
                 (3) Conversion;
16   CENTER, and DOES 1-100,                      (4) Actual Fraud; 

                                                  (5) Constructive Fraud;
17                       Defendants.              (6) Intentional Misrepresentation;
                                                  (7) Conspiracy;
18                                                (8) Breach of Implied Covenant of
19   --------------------------~/                 Good Faith and Fair Dealing;
                                                  (9) Unjust Enrichment.
20

21

22
     Plaintiff AMERICAN MOTOR CITY complains and alleges as follows:
23
                                         GENERAL ALLEGATIONS
24
           1.     Plaintiff AMERICAN MOTOR CITY (hereinafter referred to as "Plaintiff') is,
25
     and at all times herein mentioned whos principal place of business is based out of
26
     Houston , Texas.
27
           2.     Plaintiff is informed and believes, and thereon alleges that Defendant
28

     COMPLAINT FOR DAMAGIiiS._.           h           .
                             IllS     case as been assIgned to Judge WILLIAM A. MfYHEW
 1   CROWS LANDING AUTO CENTER, and at all times mentioned herein is an unknown

 2   business entity that operates in Stanislaus County, California.

 3          3.     Plaintiff is informed and believes, and thereon alleges that Defendant

 4   AMEL MOHAMMAD ATALLA, is, and at all times mentioned herein was, an individual

 5   residing in Stanislaus County,   California.,~

 6          4.     Plaintiff is ignorant of the true names and capacities of the Defendants
 7   sued herein as DOES 1 through 100, inclusive, and therefore sue such Defendants by
 8   such fictitious names. Plaintiff is inforf!1ed and believe that each fictitiously named

 9   Defendant is somehow responsible for the damages alleged herein, and Plaintiff will

10   amend this complaint to assert the true names and capacities of such fictitiously named

11. Defendants when they become known to Plaintiff.
12                                                I.

13                                    FIRST CAUSE OF ACTION

14                                      (Breach of Contract)

15                                     (As To All Defendants)

16          5.     During the years 2004 to 2008, Plaintiff and Defendants entered into

17   verbal partnership agreements, wherein Plajntiff would send Defendants automobiles,

18   that would be placed for sale at Defendants' car lots, and in return, pay for the vehicles

19   as they were sold.

20          6.     The essential terms of the partnership agreement were that Plaintiff would

21   be paid for the vehicles it sent from Texas immediately upon sale of each by CROWS
22   LANDING AUTO CENTER and AIVIEL MOHAMMAD ATTALA. Defendants agreed to

23   advertise, and sell the vehicles at the highest price marketable, and to pay Plaintiff
24   immediately upon sale to a customer.

25          7.     Plaintiff has performed all conditions, covenants, and promises required to

26   be performed on his part in accordance with the terms a!1d conditions of the partnership

27   agreement.

28

     COMPLAINT FOR DAMAGES                                                                Page 2
 1          8.     On or about February of 2008, Defendants began to delay payment for

 2   the vehicles sent from Plaintiff. As of May 2008, although Plaintiff demanded payment

 3   for vehicles it had sent in good faith, no payments were provided by Defendants

 4   CROWS LANDING AUTO CENTER, and AMEL MOHAMMAD ATTALA.

 5          9.     On or about May of 2008, Plaintiff discovered that Defendants had in fact

 6   sold the vehicles it had provided to them, and they did so without having the legal titles

 7   to the vehicles that were sold. Plaintiff did not transfer any titles to the vehicles, and

 8   has never been paid for them ..

 9          10.    Defendants further breached the partnership agreement by sending

10   checks that were returned for insufficient funds in an attempt to delay paying for the

11   now stolen vehicles.

12          11.    As a proximate result of Defendants breach of the partnership agreement,

13   Plaintiff has suffered damages in that he provided automobiles to Defendants, and they

14   failed to pay for same. Plaintiff has lost profits that would have been earned by the

15   partnership agreement but for Defendants' breach, in an amount to be proven at trial.

16                                                 II. 

17                                 SECOND CAUSE OF ACTION 


18                                   (Breach of Fiduciary Duty) 

19          12.    Plaintiff hereby incorporates as if fully set forth herein the allegations of

20   paragraphs 1 through 11, inclusive.

21          13.    By intentionally delaying Plaintiff's payments, and by converting the

22   monies to their own use, Defendants breached the duty of care imposed by Corporation

23   Code Section 1640 to the partnership and to Plaintiff.

24          14.    ~s a proximate result of Defendants' breach of their duty of care to the
25   partnership and to Plaintiff, Plaintiff has suffered damages in that it contributed

26   financially to the partnership business and contributed its services in selecting quality

27   vehicles for sale at Defendants' car lots. Plaintiff has also lost profits that would have

28

     COMPLAINT FOR DAMAGES                                                                 Page 3
 1 been earned by the partnership but for Defendants' breach, in an amount to be proven

 2   at trial.

 3                                                    III.

 4                                      THIRD CAUSE OF ACTION

 5                                              (Conversion)

 6               15.   Plaintiff hereby incorporates as if fully set forth herein the allegations of

 7   paragraphs 1 through 14. inclusive.
 8               16.   At all times herein mentioned, and in particular beginning in or about
 9· February of 2008, Plaintiff was, and still is, entitled to possession, of the following
10   property: 2007 Chevrolet Tahoe (7R131804), 2007 Chevrolet Tahoe 7R122491; 2005
11   Chevrolet Tahoe 5J113800, 2005 Cadillac Escalade 5G117387, 2004 Chevrolet

12   Suburban 4G234254, 2004 Chevrolet Suburban 4R252470, as well as the monies for

13   bounced checks written by CROWS LANDING AUTO CENTER and AMEL
14   MOHAMMAD ATTALA. The above-mentioned property has a value of in excess of

15   over several hundred thousand dollars.
16               17.   Beginning in or about February of 2008, Defendants wrongfully and
17   intentionally interfered with the interests of Plaintiff and the partnership by taking the

18   vehicles sent from Plaintiff and converting the same for their own use.

19               18.   As a proximate result of Defendants' conversion, Plaintiff has suffered

20   damages in an amount in excess of several hundred thousand dollars.

21               19.   Moreover. Defendants' acts of converting Plaintiff's property were done
22   intentionally, willfully, wanton, and malicious, and justify the award of exemplary and

23   punitive damages.

24 1/1
25   1/1
26   1/1
27   1/1
28

     COMPLAINT FOR DAMAGES                                                                      Page 4
 1                                                   IV.
 2                                    FOURTH CAUSE OF ACTION

 3                                            (Actual Fraud)

 4           20.      Plaintiff hereby incorporates as if fully set forth herein the allegations of

 5   paragraphs 1 through 19, inclusive.

 6           21.      By entering into the partnership agreement, Plaintiff was told that it would

 7   be able to obtain payment immediately upon sale to Defendants' customers, and

 8   Defendants were able to obtain vehicles at below wholesale prices, thereby ensuring

 9   their profits.

10           22.      As of February 2008, when Defendants made promises to Plaintiff that

11   payments would be forthcoming, Defendants had no intention of performing that

12   promise.

13           23.      The promise was made by Defendants with the intent to induce Plaintiff to

14 . enter into the partnership agreement and contribute his time, money and services to the

15   partnership, from which Defendants could gain profits and benefits for themselves.

16           24.      Plaintiff, at the time the promise was made and at the time Plaintiff took

17   the actions alleged, was ignorant of Defendants' secret intention not to perform and

18   could not, in the exercise of reasonable diligence, have discovered their secret.

19   intention. In reliance on Defendants' promise, Plaintiff contributed his time, money and

20   services to the partnership. If Plaintiff had known of Defendants actual intention,

21   Plaintiff would not have taken that action.
22           25.      As a proximate result of Defendants' fraud and the facts alleged in this

23   complaint, Plaintiff was induced to, and did, enter into the partnership agreement and

24   contribute his'time, money and services to the partnership business, and by reason of

25   which Plaintiff has been damaged in an amount to be proven at trial.

26           26.      Moreover, Defendants' acts of fraudulently inducing Plaintiff to enter into

27   the partnership agreement were done intentionally, willfully, wanton, and malicious, and

28

     COMPLAINT FOR DAMAGES                                                                     Page 5
 1 justify the award of exemplary and punitive damages.

 2                                                  V.
 3                                    FIFTH CAUSE OF ACTION

 4                                      (Constructive Fraud)

 5          27.     Plaintiff hereby incorporates as if fully set forth'·nerein the allegations of

 6   paragraphs 1 through 26, inclusive.

 7          28.     By virtue of the partnership agreement, the relationship between Plaintiff,
 8   and Defendants was fiduciary in nature. Defendants thereby owed Plaintiff the
 9   fiduciary duties of loyalty and care, and the obligation to conduct the partnership.
10   business in good faith and fair dealing. Because Plaintiffs confidence in Defendants

11   integrity caused Plaintiff to entrust Defendants with the authority to act for the
12   partnership, a confidential relationship existed at all times herein mentioned between

13   Plaintiff, and Defendants.

14          29.     Defendants breached their fiduciary duties to Plaintiff and violated the
15   relationship of trust and confidence by excluding Plaintiff from its interest in the
16   partnership business and assets, and by securing advantage over Plaintiff by
17   misleading Plaintiff to its prejudice.

18          30.    Plaintiff placed confidence in and relied on Defendants until on or about

19   May of 2008, when Plaintiff discovered the aforesaid acts committed in breach of

20   Defendants' fiduciary duties. Until that date, Plaintiff had reasonably relied on

21   Defendants in view of their relationship as partners under the partnership agreement.

22          31.    As a proximate result of Defendants' fraud as herein alleged, Plaintiff has

23   been damaged in an amount to be proven at trial.
24                                                 VI 


25                                   SIXTH CAUSE OF ACTION 


26                      (Intentional Misrepresentation - Civil Code §1572) 


27          32.     Plaintiff hereby realieges and incorporates paragraphs 1 through 31, as

28

     COMPLAINT FOR DAMAGES                                                                   Page 6
 1 though fully set forth herein.

 2          33.        Defendants made the following representations to Plaintiff :

 3                  A. That Plaintiff would receive a share of the profits of the sales of the

 4   vehicles;

 5                     B. That Plaintiff would be paid immediately upon the sale.
 6          34.     The representations of the these Defendants were in fact false. The true
 7   facts are that:

 8                  A. Defendants obtained vehicles from Plaintiff without making any

 9   payments. Defendants then sold these vehicles for profit and hid the sales from
10   Plaintiff. Defendants then provided checks for alleged payments for vehicles sold, and

11   these checks were of no value when received by Plaintiff.
12                     B. Defendants only intended to mislead Plaintiff into providing vehIcles at

13   its own expense, and free to Defendants.
14                     C. Defendants had no intention of, and did not, provide any of their own
15   capital and/or funds for the sales, and continued sales of the vehicles.

16          35.     When Defendants made the herein mentioned representations, they knew

17   them to be false and made these representations with the intention to deceive and

18   defraud Plaintiff and induce Plaintiff to act in reliance on these representations, or with
19   the expectation that Plaintiff would so act.

20          36.     Plaintiff, at the time these representations were made by Defendants, and
21   at the time Plaintiff took the acts herein alleged, was ignorant of the falsity of these
22   representations, and believed them to be true.
23          37.        In reliance of these representations, Plaintiff was induced to, and did,

24   provide   moni~s and labor in the form of paying for, and finding vehicles for sale at
25   Defendants' dealerships, in excess of hundreds of thousand dollars.

26          38.        Plaintiff would not have sent the vehicles to Defendants, if it had known

27   the true facts. As a direct and proximate cause of the fraudulent conduct of

28

     COMPLAINT FOR DAMAGES
 1   Defendants, Plaintiff has been damaged in excess of $100,000.00.

 2          39.    The aforementioned conduct of Defendants was intentional

 3   misrepresentation, deceit and/or concealment of material facts known to Defendants,

 4   with the intention on their part of thereby depriving Plaintiff of property, legal rights or

 5   otherwise causing injury, and was despicable conduct that swbjected to cruel and unjust

 6   hardship and conscious disregard of Plaintiff's right, so as to justify an award of

 7   exemplary and punitive damages.

 8                                                 VII 


 9                                 SEVENTH CAUSE OF ACTION 


10                                            Conspiracy 


11                                         (All Defendants) 


12          40.    Plaintiff hereby incorporates as if fully set forth herein the allegations of

13   paragraphs 1 through 39, inclusive.

14          41.    Beginning in or about February of 2008, Defendants, and each of them,

15   knowingly and willfully conspired and agreed amongst themselves to commit the torts

16   and breaches of contract and duty alleged herein above.

17          42.    Defendants, and each of them, did the acts and things herein alleged

18   pursuant to, and furtherance of, the conspiracy.

19          43.    Plaintiff is informed and believes and thereon alleges that the last overt

20   act in pursuance of the above-described conspiracy occurred on or about May of 2008.

21          44.    As a proximate result of the wrongful acts herein alleged, Plaintiff has

22   been generally damaged in an amount in excess of several hundred thousand dollars.

23          45.    Moreover, in engaging in said conduct and acts, Defendants, and each of

24   them, acted willfully, oppressively, fraudulently, and maliciously, and therefore, Plaintiff

25   is entitled to punitive damages in an amount to be ascertained at trial.

26   11/
27   11/
28

     COMPLAINT FOR DAMAGES
 1                                                  XI. 


 2                                    EIGHTH CAUSE OF ACTION 


 3                   (Breach of Implied Covenant of Good Faith and Fair Dealing) 


 4           46.      Plaintiff hereby realleges and incorporates paragraphs 1 through 45, as

 5   though fully set forth herein.

 6           47.      Defendants agreed to act in good faith and fair dealing in operating the
 7   business in that Defendants agreed to provide monies for the vehicles provided by
 8   Plaintiff. Plaintiff relied on Defendants' representations regarding their duty to be fair,
 9   honest, and truthful about the profits and/or sales in that Plaintiff provided and

10   continued to provide vehicles. Further, Plaintiff relied on Defendants' representations

11   that Defendants would provide funds to Plaintiff to pay for the vehicles it had sold.

12           48.      Plaintiff has recently learned that Defendants did not provide any funds to
13   Plaintiff despite their representations, and that new lenders are demanding titles to the

14   vehicles owned by Plaintiff, and sold by Defendants.
15           49.      As a proximate and direct result of Defendants' failure to pay for the

16   vehicles sold, Plaintiff has been damaged in excess of hundred thousand dollars.

17                                                 XII. 


18                                    NINTH CAUSE OF ACTION 


19                                        (Unjust Enrichment) 


20           50.      Plaintiff hereby realleges and incorporates paragraphs 1 through 49 as

21   though fully set forth herein

22           51.      Defendants, taking possession of the vehicles sent by Plaintiff, have
23   improperly received monies from the vehicle sales, and failed to disclose those monies
24   to Plaintiff.

25           52.      The monies taken by defendants were as a result of Plaintiff's continued

26   labor and capital investment into Defendants' inventory, with the understanding that

27   Plaintiff would be receive payment for same from Defendants.

28

     COMPLAINT FOR DAMAGES                                                                 Page 9
 1          53.     To date, Defendants have failed to provide any money to Plaintiff for its

 2   vehicles.

 3          54.     As a direct and proximate result of defendants' actions, Plaintiff has been

 4   damaged in excess of $150,000.00.

 5          WHEREFORE, AMERICAN MOTOR CITY prays for jfadgment against

 6   Defendants, and each of them, as set forth below.

 7                                             PRAYER

 8          1.      For general damages according to proof;

 9          2.      For special damages according to proof;

10          3.      For pre-judgment interest on the damages according to the legal interest

11   rate of ten percent per year;

12          4.      For litigation costs', including attorneys' fees where applicable, and expert

13   and consultant fees, according to proof;

14          5.      For punitive and exemplary dar:nages to be determined in these

15   proceedings;

16          6.      For such other and further relief as the court may deem proper.

17
18   Date: October -L, 2008 	                   CURTIS & ARATA
                                                A Professional Law Corporation
19
20
21                                                  d~~.,.:::~~·~;::::::::~~",,-- ___
                                                By:_~ 	
                                                      ~KRUf\f?Sdi3"Ri
22                                                     Attorney for Plaintiff
                                                       AMERICAN MOTOR CITY
23
24
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     COMPLAINT FOR DAMAGES 	                                                             Page 10

				
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