Other Sections
One (8/22/99 thru 4/19/94) -
Two (6/10/96 only) -
Three (thru 9/19/96)
Four (thru 9/18/97) -
Five (thru 8/10/98) -
Six (thru 10/26/98)
Seven (thru 4/14/99) -
Eight (thru 6/24/99) -
Nine (thru 9/8/99)
Eleven (thru 12/27/99) -
Twelve (thru 7/25/00) -
Thirteen (thru 10/9/00)
Fourteen (thru 9/11/01) -
Fifteen (thru 10/1/02) -
Sixteen (thru 1/19/03)
Seventeen (to present)
10/19/99 (129-147)
[This entire section is composed of the exact words found in the
court document.]
This is the second amended complaint for intentional interference with economic relationships, slander per se, libel, conspiracy, injunction, malicious prosecution and damages. Steve is the Plaintiff vs COUNTY, JANET ATWOOD, MICHAEL STOLTZ, GEORGE CUTTRELL, BILL ALLEN, BILL PIEPER, JAMES MCKEEHAN, MICHAEL AMERLAN, HARRY BERBERICH, CINDY KLINGER, BRUCE KLINGER, LEE CARDOZA, BOB O'HARA, and DOES 1 thru 100, inclusive.
FACTS COMMON TO ALL CAUSES OF ACTION
Allegations and related events (briefly stated):
Insomuch as known, paragraphs 1 thru 7 show who the people involved were in regards to their titles, place of residence, etc.
The numbered paragraphs that follow are sometimes abbreviated slightly to take out some the legal terminology.
8. At all relevant times each of the Defendants named was the agent, representative, servant, and employee of the remaining Defendants, and and in doing the things hereinafter alleged, each Defendant was acting within the course and scope of his authorities and with permission and consent of each Co-Defendant.
9. At all relevant times, each of the Defendants named herein ratified, approved, sanctioned, and endorsed the actions of each of the other Defendants, as alleged herein.
10. On or about 10/24/89, MCKEEHAN and COUNTY entered into a lease for an an unimproved lot located at Georgetown Airport, which lease compelled MCKEEHAN to construct a hangar thereon, and commence business, within six (6) months of the date of execution of said lease. MCKEEHAN did not construct the hangar or commence any business within the time required by the lease; however, MCKEEHAN commenced construction of said hangar on or about June 15, 1990. In December, 1992, MCKEEHAN entered into negotiations with Plaintiff to assume the lease of the property between MCKEEHAN and COUNTY, complete construction of the hangar, and commence operation of an aircraft repair, maintenance, and restoration business. Plaintiff agreed to purchase the hangar and assume the lease with COUNTY, which assumption was approved by COUNTY. Thereafter, a lease-purchase agreement for the hangar was executed by Plaintiff and MCKEEHAN, a copy of which is attached hereto as Exhibit "C"; a copy of the assignment of the COUNTY-MCKEEHAN lease is attached hereto as Exhibit "D".
11. The contract between Plaintiff and MCKEEHAN, Exhibit "C", is a purchase agreement, by the terms of which MCKEEHAN sold the hangar to Plaintiff for the sum of $52,000, with a down payment if $1,180, the balance bearing interest at the rate of 10% per annum, payable at the rate of $590 per month, commencing 1/1/93, and terminating on 12/31/08, at which time Plaintiff would become the owner of the hangar.
12. The purpose of Exhibit "C" (this agreement) was to allow Plaintiff to purchase the hangar, with a minimum down payment, as an incentive to complete and effect improvements in the hangar, all of which Plaintiff did do.
13. In performing his obligations, Plaintiff completed the hangar, and effected substantial improvements thereto, at a cost of approximately $27,000; thereafter, the hangar was referred to as "Hangar H2". In January, 1993, Plaintiff opened his aircraft repair and maintenance facility in Hangar H2, and offered flight training, as well, under the name of Skyways Flying Service and Blacksheep Classic Airplane. From and after 1/93, and until 1/99, Plaintiff operated his business in Hangar H2.
14. After locating his business in Hangar H2, Plaintiff became actively involved in the Georgetown Airport. He served, on a volunteer basis, on the Committee to establish minimum requirements for commercial aeronautical activities, which drafted regulations applicable to businesses located at El Dorado County airports; which were enacted by the Board of Supervisors and became part of the El Dorado County codes. He regularly attended meetings of the Airport Commission, and discussed operations at the Georgetown Airport with ATWOOD,CUTTRELL, and other employees of COUNTY. In 1994, County and Plaintiff agreed that he would perform certain duties at the Georgetown Airport, and executed an addendum to the COUNTY-MCKEEHAN lease. However, the duties under the addendum were to be performed only by Plaintiff, not by MCKEEHAN, pursuant to the request of MCKEEHAN, who opposed any direct relationship between Plaintiff and COUNTY.
15. In and around 5/1/95, Plaintiff, in exercising his right of free speech, pursuant to the first amendment of the United States Constitution, appeared at a public meeting of the Airport Commission, and criticized certain actions of MCKEEHAN and COUNTY'S airport Commission, with respect to policies adopted regarding COUNTY airports. In particular, Plaintiff asserted that certain policies adopted by the Airport Commission, and the Board of Supervisors, violated state law. Thereafter, the acts alleged below occurred, in retaliation to the constitutionally protected conduct of Plaintiff.
16. On or about 5/1/95 and to the present time, ATWOOD was employed by DOT, and she told members of public that Steve was dishonest in his business dealings.
17. On or about 5/1/95 and at various times thereafter to 6/15/99, ALLEN was employed as a Deputy Sheriff, and he falsely reported to ATWOOD, as well as one Plaintiff's customers, the Plaintiff extorted money from his customers.
18. On or about 5/1/95 and at various times thereafter to 1/15/99, PIEPER served as commissioner on the Airport Commission, and in such capacity, wrote to one of Plaintiff's customers, alleging that he was inquiring into a dispute on behalf of the Sheriff's Dept., thus giving the impression that that a criminal investigation into Steve's business was being conducted.
19. On or about 5/1/95 to the present time, COUNTY, STOLTZ, and CUTTRELL, employees of DOT, denied Plaintiff a lease assignment on a residential dwelling at the airport on the basis that it was an unacceptable risk for the county to permit a family with young children to reside in the mobile home, despite the prior occupation of the premises by a family with young children for many years.
20. On or about 6/28/95, an aircraft owned by Plaintiff was stolen from the Georgetown Airport by persons whose identities became known to the County Sheriff's Dept., but the District Attorney of COUNTY failed and refused to prosecute said individuals for violating Penal Code paragraphs 484, 487, and 499d, or any other laws.
21. On or about 8/3/95, Defendant BERBERICH paid Plaintiff for services rendered to repair an aircraft owned by Defendant BERBERICH with a worthless check, thereby fraudulently depriving Plaintiff of a possessory lien on the aircraft (a misdemeanor), but the District Attorney failed and refused to prosecute said individual for violating Code of Civil Procedure paragraph 1208.69, Penal Code paragraphs 484, 487, or 532, or any other laws.
22. On or about 5/1/95 and at various times thereafter, PIEPER, MCKEEHAN, KLINGER, AMERLAN, BERBERICH, O'HARA and DOES 5 thought 10 have made numerous false complaints about Plaintiff to various COUNTY officials and departments and these officials and departments continually inspected Steve's premises despite their failure to discover any foundation for the complaints.
23. On or about 5/1/95 and at various times thereafter, Plaintiff requested the opportunity to lease unimproved property adjacent to their business premises. MCKEEHAN and COUNTY, contrary to state law, claimed that MCKEEHAN had requested a lease of such premises prior to Plaintiff, and that he (MCKEEHAN) was therefore entitled to such lease. In further violation of state law and regulations promulgated by the COUNTY, MCKEEHAN was not required to commence building on the premises within six months of entering the lease; however, such lease in favor of MCKEEHAN has since been terminated. Plaintiff is informed and believes and thereon alleges that MCKEEHAN and COUNTY entered into the lease of the unimproved property solely to preclude Plaintiff from leasing said property and expanding his business. This conduct of MCKEEHAN and COUNTY did, in fact, preclude Plaintiff from expanding his business operations, all to his damage.
24. On or about 5/1/95 and at various times thereafter, Plaintiff requested the opportunity to lease a 20' x 60' strip of unimproved land on the north side of their business premises at Hangar H2, but ATWOOD refused to lease premises to Plaintiff, and instead made an unsolicited offer to lease the premises to MCKEEHAN. Plaintiff is informed and believes and thereon alleges that ATWOOD and COUNTY refused to lease the unimproved property solely to preclude Plaintiff from leasing said property and expanding his business operations, all to his damage. This conduct of MCKEEHAN and ATWOOD did, in fact, preclude Plaintiff from expanding his business operationsm, all to his damage.
25. On or about 5/1/95, Plaintiff requested the opportunity to lease a 20' x 60' strip of unimproved land on the south side of their business premises at Hangar H2, to construct a patio for his customers, with tables, and thereby improve the airport property, which request was ignored by COUNTY, ATWOOD, STOLTZ, and CUTTRELL. Plaintiff is informed and believes and thereon alleges that COUNTY, ATWOOD, STOLTZ, and CUTTRELL ignored his request, solely to preclude Plaintiff from leasing said property and expanding his business. This conduct of MCKEEHAN and COUNTY did, in fact, preclude Plaintiff from expanding his business operationsm, all to his damage.
26. On or about 5/1/95 and at various times thereafter, MCKEEHAN threatened to put Plaintiff "out of business", with the assistance of his "powerful friends", that is, County Supervisor Walt Shultz, and other employees of COUNTY, including, but not limited to ATWOOD, ALLEN, Thomas Parker, Deputy Sheriff Kevin House, and STOLTZ. Plaintiff is informed and believes and thereon alleges that the conduct of said employees, as alleged herein, and other employees unknown to Plaintiff, was undertaken with the intent to assist MCKEEHAN in fulfilling the threat he made to Plaintiff.
27. On or about 5/1/95 and at various times thereafter, Defendants, and each of them, have told Plaintiff's customers, friends, acquaintances and members of the public that Plaintiff is dishonest in his business dealings, and that Plaintiff STEPHEN G. CIMMARUSTI is incompetent in his profession, and not qualified to effect repairs to aircraft.
28. Plaintiff is informed and believes and thereon alleges that from and after 1/1/96 and to the present time, BERBERICH told various customers of Plaintiff, including, but not limited to, MICHAEL AMERLAN, that Plaintiff failed to do maintenance on BERBERICH's aircraft, Plaintiff's had "sabotaged" BERBERICH's aircraft, Plaintiff performed shoddy work, Plaintiff's work did not comport to the requirements of FAA regulations, and to the standard in the industry, Plaintiff misquoted the amount that would be charged for work he performed, he was untruthful in his business dealings, and he overcharged for his services.
29. Plaintiff is informed and believes and hereon alleges that from and after 1/1/96 and to the present time, CINDY KLINGER told various customers of Plaintiff, including, but not limited to, MICHAEL AMERLAN, that Plaintiff performed shoddy work, he misquoted the amount that would charged for the work he performed, he was untruthful in his business dealings, he overcharged for his services, and he falsified a debt she was required to pay.
30. Plaintiff is informed and believes and thereon alleges that from 1/1/96 and to the present time, BRUCE KLINGER told various customers of Plaintiff, including but not limited to, MICHAEL AMERLAN, that Plaintiff performed shoddy work, he misquoted the amount that would be charged for the work he performed, he was untruthful in his business dealings, he overcharged for his services, Plaintiff tampered with his (Klinger's) aircraft so as to endanger his life, and that BRUCE KLINGER would kill Plaintiff if Plaintiff went near KLINGER's aircraft.
31. Plaintiff is informed and believes and thereon alleges that from 1/1/96 and to the present time PIEPER told various customers of Plaintiff, including but not limited to MICHAEL AMERLAN, that Plaintiff performed shoddy work, he misquoted the amount that would charged for the work he performed, he was untruthful in his business dealings, did not perform to the standard of the industry, and he overcharged for his services.
32. Plaintiff is informed and believes and thereon alleges that from 1/1/96 and to the present time MCKEEHAN told various customers of Plaintiff, including but not limited to MICHAEL AMERLAN, that Plaintiff performed shoddy work, he misquoted the amount that would charged for the work he performed, he was untruthful in his business dealings, and he overcharged for his services.
33. Plaintiff is informed and believes and thereon alleges that from 1/1/96 and to the present time CARDOZA told various customers of Plaintiff that Plaintiff performed shoddy work, he misquoted the amount that would charged for the work he performed, he was untruthful in his business dealings, and he overcharged for his services.
34. Plaintiff is informed and believes and thereon alleges that from 1/1/96 and to the present time, O'HARA told various customers of Plaintiff that Plaintiff performed shoddy work, he misquoted the amount that would charged for the work he performed, he was untruthful in his business dealings, and he overcharged for his services.
35. On or about 5/23/96 ATWOOD directed Mike Donnelly at County Dept. of Air Pollution to inspect Plaintiff's premises in order to impose regulations upon Plaintiff's operation of his business, in the course and scope of such business, to wit, to impose regulations to prevent Plaintiff from painting any aircraft in the course of effecting repairs to same. Plaintiff is informed and believes and thereon alleges that ATWOOD did so to preclude Plaintiff from continuing the usual and customary operation of his business.
36. On 6/10/96, Plaintiff presented to COUNTY by mailing a claim to the Board of Supervisors for the damages and losses suffered and incurred by him by reason of the above-described occurrences, all in compliance with the requirements of the California Government Code. On 8/15/96, the claim presented to COUNTY by Plaintiff was rejected by COUNTY.
37. On or about 6/15/96, Walt Shultz, Supervisor of Fourth District of the County of El Dorado, in which Plaintiff's business is located, THOMAS PARKER, deputy county counsel for the County of El Dorado, MCKEEHAN, PIEPER, ATWOOD, and DOES 9, 10, and 11 met in the offices of the El Dorado County Counsel, and agreed among themselves to force Plaintiff out of business at the Georgetown Airport, so as to assist MCKEEHAN in taking possession of Hangar H2. At that time, PARKER acknowledged that El Dorado County Counsel did not represent MCKEEHAN, but that he would do what he could to force Plaintiff out of business. In furtherance of this agreement, PARKER wrote MCKEEHAN correspondence dated 8/28/96 which demanded that MCKEEHAN commence proceedings to evict Plaintiff from his business premises in Hangar H2, or face termination of his (McKeehan's) own master lease with COUNTY. In said letter, several grounds were set forth as "reasons" MCKEEHAN was compelled evict Plaintiff from the premises. All of said "reasons" were provided to PARKER by MCKEEHAN and/or his counsel, and all of said "reasons" were false. MCKEEHAN and/or his counsel reviewed, modified same, and requested that the modified letter be sent to MCKEEHAN, so as to support an unlawful detainer action he intended to file against Plaintiff. Plaintiff is informed and believes and thereon alleges that PARKER and MCKEEHAN undertook such conduct, solely to destroy Plaintiff's business, and force him to leave the County of El Dorado.
38. From and after 6/15/96, ATWOOD advised KLINGER, CARDOZA, O'HARA, MCKEEHAN and others to contact her office, by telephone and in writing, with complaints regarding Plaintiff, so as to drive Plaintiff out of business at the Georgetown Airport. Pursuant to such advice, Defendants made numerous telephone calls to ATWOOD, with false complaints about Plaintiff's business operation.
39. Plaintiff is informed and believes and thereon alleges that from 7/1/96 and to the present time, AMERLAN told various customers of Plaintiff that Plaintiff was a criminal, dangerous, psychotic, a thief, unpredictable, performed shoddy work, that he misquoted the amount to be charged for work he performed,that he was untruthful in his business dealings, and that he overcharged for his services.
40. After obtaining the letter from PARKER, MCKEEHAN served Plaintiff with a notice to quit his business premises in Hangar H2, for the reasons set forth in said letter. MCKEEHAN did not provide a copy of the letter to Plaintiff with Notice to Quit; Plaintiff refuted the allegations in the Notice, by letter, attached hereto as Exhibit "B". Thereafter MCKEEHAN filed an unlawful detainer action against Plaintiff, to which was attached a copy of Exhibit "A", El Dorado County Court Case Number PV002532; upon service of said complaint him, Plaintiff first learned of the letter written by PARKER.
41. Plaintiff is informed and believes and thereon alleges that PARKER did not verify whether or not the "reasons" set forth in Exhibit "A" were true, did not speak to Plaintiff regarding said allegations, did not request that Plaintiff attend the meeting of 6/15/96 wherein the alleged deficiencies in Plaintiff's performance were discussed, did not provide a copy of Exhibit "A" to Plaintiff, and that no proceedings were ever instituted against MCKEEHAN to terminate the lease between him and COUNTY. At the time the action was filed against Plaintiff, all monies due had been paid by Plaintiff; after filing the action, MCKEEHAN refused to accept any further payments from Steve.
42. As a result of the actions of Defendants, as herein alleged, Plaintiff sustained a substantial decrease in his income.
43. On 6/18/97, the first day of trial in Case Number PV 002532, Plaintiff offered to pay the balance of the purchase price of Hangar H2 to MCKEEHAN, which offer he rejected. Judgement was entered in Case Number PV 002532 in favor of Plaintiff. However, prior to entry entry of final judgement, MCKEEHAN demanded that Plaintiff pay all monthly payments due him, which had not been paid after MCKEEHAN instituted the action, within three days, or quit the premises, Hangar H2.
44. Plaintiff was unable to pay the entire amount demanded by MCKEEHAN, as a result of the substantial economic losses he had suffered from the actions of the Defendants alleged herein. Thereafter, on 9/4/97, MCKEEHAN filed another unlawful detainer action against Plaintiff, El Dorado County Case Number WS97C00697, based solely on Plaintiff's failure to pay the amount demanded by MCKEEHAN.
45. On or about 2/20/98, a judgement was rendered in Case Number WS97C00697, in favor of MCKEEHAN against Plaintiff, which judgement ordered that MCKEEHAN have and recover from Steve possession of hanger H2, the amount have and recover from Plaintiff possession of Hangar H2, the amount $12,266.79, plus $25.459 due to each day after 1/23/98. The judgement also declared Exhibit "C" (the lease-purchase agreement for the hangar) to be a lease option, under which Plaitiff held occupancy of Hangar H2, which was forfeited. On 2/24/98 Plaintiff paid the amount of $13,258.12 to MCKEEHAN, in full payment of the judgement, and all monies due to Plaintiff (McKeehan), through 2/28/98.
46. Plaintiff filed his petition requesting that he be relieved of forfeiture of the lease option, which petition was denied. On 1/24/99, Plaintiff was forced to vacate the subject premises; all monies due under Exhibit "C" had been paid in full by Plaintiff, in the approximate amount of $40,000. Hangar H2 thereafter reverted to the possession and ownership of MCKEEHAN.
47. On about 12/31/98, Plaintiff obtained an assignment of Hangar C1, located at the Georgetown Airport, and owned by COUNTY, from the the then lessee, Josef Treiber. Said assignment was in compliance with all applicable rules and regulations, as well as established procedure for the assignment of such leases. On 1/4/99, Plaintiff notified COUNTY of the assignment, and began performing the obligations under such lease, including payment of rent to COUNTY, in the amount of $700 per month. On or about 1/4/99, Plaintiff commenced occupation of Hangar C1, and ever since then has been operating his business from said Hangar.
48. On or about 3/15/99, subsequent to Treiber's assignment of his lease to Plaintiff, MCKEEHAN sought to assign the lease he retained with COUNTY to a third party. At his (McKeehan's) request, PARKER assisted in the assignment of MCKEEHAN's lease, which assignment was accomplished on or about 4/15/99. Plaintiff was informed and believes and thereon alleges that MCKEEHAN has sold Hangar H2, in its improved state (improved by Plaintiff), to the same party to which the lease with COUNTY was assigned.
49. However, with respect to the assignment of the Treiber lease sought by Plaintiff, COUNTY refused, and continues to refuse, to consent to the assignment of the lease to Plaintiff, despite Plaintiff's performance of all conditions demanded by PARKER, on behalf of COUNTY.
AS AND FOR HIS FIRST CAUSE OF ACTION FOR INTENTIONAL ....
50. Plaintiff refers to paragraphs 1 through 49 and incorporates them herein by reference.
51. Defendants, each of them, knew of the relationship existing between Plaintiff and his customers, in that Defendants, and each of them, have observed such customers at Plaintiff's business premises, and have observed Plaintiff providing services to such customers
52. On and after 6/1/95, various customers of Plaintiff have failed and refursed to pay Plaintiff for services performed, have breached contracts entered into with Plaintiff, severed their business relationships with Plaintiff, and have failed to return to Plaintiff's business for further services.
53. At the times the representations were made by Defendants, as set forth hereinabove, Defendants knew such representations were untrue, and made such representations with the intent to harm Plaintiff financially and to induce Plaintiff's customers to breach their contracts with Plaintiff, and to sever their business relationships with Plaintiff.
54. As a proximate result of the actions of Defendants, and each of them, Plaintiff has suffered general and compensatory damages, in the amount to be proved at the time of trial.
55. As a further proximate result of the actions of Defendants, each of them, Plaintiff's earning capacity has been greatly impaired, both in the past and at the present, in an amount to be proved at the time of trial.
56. As a further proximate result of the actions of Defendants, each of them, Plaintiff has suffered and continues to suffer shock and injury to his nervous system, all of which injuries have caused, and continue to cause, great mental, physical, and nervous pain and suffering, all to his damage in an amount to be proved at time of trial.
57. Plaintiff is informed and believes and thereon alleges that the above-decribed actions of Defendants, and each of them, were undertaken with malice, oppression, and fraud, in that all Defendants were well aware that the accusations made by them were false, and such conduct was undertaken solely to hold Plaintiff up to ridicule and scorn in the community, and to destroy his business operations. Therefore, and award of exemplary and punitive damages, in an amount to be proved at time of trial is justified.
AND AS FOR HIS SECOND CAUSE OF ACTION...
58. Plaintiff refers to paragraphs 1 through 49 and incorporates them herein by reference.
59. The words uttered by Defendants, and each of them, were slanderous per se because they tend to injure Plaintiff in respect to his trade and business by imputing to him general disqualification in respect to the honesty and integrity required of him by his trade, which also has a natural to lessen his profits.
60. The words uttered were false statements because at no time did Plaintiff extort his customers, claim monies to be due for work not performed, make false claims as to the quality of the work, been the subject of any criminal investigation or been dishonest with his customers.
61. As a result of the above-described words, Plaintiff has suffered general damages to his reputation in the sum of one million dollars ($1,000,000).
62. The above-described words were spoken by Defendants, and each of them, with malice, oppression, and fraud, in that they were well aware of the falsity of their statements. Further, Plaintiff is informed and believes and thereon alleges that the false words were spoken solely to destroy Plaintiff's business, and to restrain Plaintiff from exercising his right to exercise free speech in a public forum. Further, Plaintiff is informed and believes and thereon alleges that the false words were spoken solely to hold Plaintiff up to ridicule and scorn in the community, so as to impugn and the validity of the concerns expressed by Plaintiff as to the actions of COUNTY. Therefore, an award of exemplary and punitive damages in an amount to be proved at time of trial is justified.
AS AND FOR HIS THIRD CAUSE OF ACTION FOR LIBEL,...
63. Plaintiff refers to paragraphs 1 through 49 and incorporates them herein by reference.
64. The writings disseminated by Defendants, each of them, as set forth above, were libelous, because they tend to injure Plaintiff in respect to his trade and business by imputing to him general disqualification in respect to the honesty and integrity required of them by his trade, which is also a natural tendency to lessen his profits.
65. The writings disseminated by Defendants, and each of them, were false statements because at no time did Plaintiff extort his customers, claim monies to be due for work not performed, make false claims as to the quality of the work, been the subject of any criminal investigation or been dishonest with his customers.
66. As a result of the above-described writings, Plaintiff has suffered general damages to his reputation in the sum of one million dollars ($1,000,000).
67. The above-described writings were disseminated by Defendants, each of them, with malice, oppression, and fraud, in that they were well aware of the falsity of their statements. Further, Plaintiff is informed and believes and thereon alleges that the false writings were disseminated solely to destroy Plaintiff's business, and to restrain Plaintiff from exercising his right to exercise free speech in a public forum. Further, Plaintiff is informed and believes and thereon alleges that the false writings were disseminated solely to hold Plaintiff up to ridicule and scorn in the community, so as to impugn and the validity of the concerns expressed by Plaintiff as to the actions of COUNTY. Therefore, an award of exemplary and punitive damages in an amount to be proved at time of trial is justified.
AS AND FOR HIS FOURTH CAUSE OF ACTION FOR CONSPIRACY TO DEPRIVE PLAINTIFF OF CIVIL RIGHTS,...
68. Plaintiff refers to paragraphs 1 through 49 and incorporates them herein by reference.
69. On or about 6/15/99, and at various times thereafter, Defendants, and each of them, knowingly and willfully conspired and agreed among themselves to destroy Plaintiff's business, to restrain Plaintiff from exercising his right to exercise free speech in a public, policital forum, to hold Plaintiff up to ridicule and scorn in the community, so as to impugn the validity of the concerns expessed by Plaintiff as to the actions of COUNTY, all to destroy Plaintiff's business and force him to leave the County of El Dorado.
70. Defendants, and each of them, did the acts and things herein alleged pursuant to, and in furtherance of, the conspiracy and above-alleged agreement.
71. Defendants, and each of them, furthered the conspiracy by cooperation with the other Defendants, and lent aid and encouragement to the other Defendants, and ratified and adopted the acts of the other Defendants, in that they repeated the false statements and disseminated false writings to others, including customers of Plaintiff.
72. As a proximate result of the actions of Defendants, and each of them, Plaintiff has suffered general and compensatory damages, in an amount to be proved at time of trial.
73. As a further proximate result of the actions of Defendants, and each of them, Plaintiff's earning capacity has been greatly impaired, both in the past and at present, in an amount to be proved at time of trial.
74. As a further proximate result of Defendants, and each of them, Plaintiff has suffered and continues to suffer shock and injury to his nervous system, all of which injuries have caused, and continues to cause, great mental, physical, and nervous pain and suffering, all to their damage in an amount to be proved at time of trial.
75. Plaintiff is informed and believes and thereon alleges that the above-decribed actions of Defendants, and each of them, were undertaken with malice, oppression, and fraud, in that all Defendants were well aware that the accusations made by them were false, and such conduct was undertaken solely to destroy to hold Plaintiff up to ridicule and scorn in the community, and to destroy his business operations. Therefore, an award of exemplary and punitive damages, in an amount to be proved at time of trial is justified.
AS AND FOR HIS FIFTH CAUSE OF ACTION FOR UNJUST ENRICHMENT AGAINST DEFENDANT COUNTY and JAMES MCKEEHAN,...
76. Plaintiff refers to paragraphs 1 through 49 and incorporates them herein by reference.
77. Plaintiff and MCKEEHAN had agreed that Exhibit "C" was a purchase
agreement for Hangar H2, and that the only reason the form entitled "lease
option" was used was to facilitate the agreement between the parties. At no
time prior to the conflict arising between Plaintiff and MCKEEHAN referred
to above, did MCKEEHAN represent to Plaintiff that he was renting Hangar
H2 to Plaintiff; indeed, had MCKEEHAN made such representation to Plaintiff,
Plaintiff would not have entered into the agreement, effected the
improvements to Hangar H2, or located his business at the Georgetown
Airport. MCKEEHAN first claimed that Exhibit "C" was a lease option agreement
after Plaintiff exercised his right of free speech, as described herein.
At all times, MCKEEHAN has failed and refused, and continues to refuse, to
comply with the provisions of Exhibit "C", to convey Hangar H2 to Plaintiff.
78. At all times relevant herein, Plaintiff has been and is now ready, able, and willing to purchase Hangar H2 in accordance with the terms and conditions if Exhibit "A".
79. Plaintiff has duly performed all of the conditions of the contract to purchase to be per formed on his part, and he is entitled to specific performance by MCKEEHAN Defendant conveying Hangar H2 to Plaintiff.
80. The consideration provided for in the contract to purchase is adequate in that Hangar H2 was sold to Plaintiff at its fair market value, with interest on the unpaid balance. Since being wrongfully dispossessed of Hangar H2, Plaintiff has no adequate remedy at law, and unless MCKEEHAN is compelled to specifically perform, Plaintiff will suffer irreparable injury.
81. In performing his obligations under Exhibits "C" and "E", immediately after taking possession of Hangar H2, Plaintiff, between 12/92 and 10/98, effected improvements to Hangar H2 at the approximate cost of $30,000.
82. The current market value of Hangar H2, without improvements made by Plaintiff, is $60,000, whereas the current market value of Hangar H2 with improvements made by Plaintiff is $75,000.
83. Plaintiff owns no other hangar or comparable property, and has no present prospect for obtaining any like property, since COUNTY owns all real property at the Georgetown Airport, as well as the only other hangar presently existing at the Georgetown Airport.
AS AND FOR HIS SIXTH CAUSE OF ACTION FOR MALICIOUS PROSECUTION AGAINST DEFENDANT MICHAEL AMERLAN,...
76. Plaintiff refers to paragraphs 1 through 49 and incorporates them herein by reference.
85. On 9/3/96, AMERLAN instituted a civil action against Plaintiff in the Superior Court of El Dorado County, California, Case Number WS96C00737. The complaint claimed that AMERLAN was entitled to damages for alleged overbilling by Plaintiff, refusal of Plaintiff to perform repairs, failure of Plaitiff to complete repairs, and failure of Plaintiff to properly effect repairs on AMERLAN's aircraft. Plaintiff filed his cross-complaint against AMERLAN in that action, asserting that AMERLAN remained indebted to Plaintiff for services performed by Plaintiff on AMERLAN's aircraft.
86. On 6/24/98, judgement was entered in Case Number WS96C00737 in favor of Plaintiff.
87. AMERLAN acted without probably cause in bringing the above-mentioned action in that he did not honestly believe that there were grounds for said action and a reasonable person would not have brought or continued to prosecute said action.
88. AMERLAN acted maliciously in bringing the above-mentioned action against Plaintiff in that AMERLAN was incurring financial problems in paying for parts required to effect repairs on his aircraft, believed that if he filed an action against Plaintiff, Plaintiff would waive payment for the services to which he was entitled in repairing AMERLAN's aircraft.
89. As a proximate result of the actions of AMERLAN in bringing the above-mentioned action against Plaintiff, Plaintiff has been damaged in an amount to be proved at time of trial.
90. As a further proximate result of action initiated by AMERLAN, Plaintiff incurred costs and attorney's fees in defending against the action, in an amount to be proved at the time of trial.
AS AND FOR HIS SEVENTH CAUSE OF ACTION FOR MALICIOUS PROSECUTION AGAINST DEFENDANT HARRY BARBERICH,...
91. Plaintiff refers to paragraphs 1 through 49 and incorporates them herein by reference.
92. On 10/16/95, BERBERICH instituted a civil action against Plaintiff in the Superior Court of El Dorado County, California, Case Number PV001282. The complaint claimed that BERBERICH was entitled to damages for alleged overbilling by Plaintiff, refusal of Plaintiff to perform repairs, failure of Plaintiff to complete repairs, and failure of Plaintiff to properly effect repairs to BERBERICH's aircraft. Plaintiff filed his cross-complaint against BERBERICH in that action, asserting that BERBERICH remained indebted to Plaintiff for services performed by Plaintiff on BERBERICH's aircraft.
93. On or about 9/15/99, judgement was entered in Case Number PV001282, in favor of Plaintiff.
94. BERBERICH acted without probably cause in bringing the above-mentioned action in that he did not honestly believe that there were grounds for said action and a reasonable person would not have brought or continued to prosecute said action.
95. BERBERICH acted maliciously in bringing the above-mentioned action against Plaintiff in that BERBERICH gave Plaintiff a fraudulent check to pay for services, in violation of California law.
96. As a proximate result of the actions of BERBERICH in bringing the above-mentioned action against Plaintiff, Plaintiff has been damaged in an amount to be proved at time of trial.
97. As a proximate result of action initiated by BERBERICH, Plaintiff incurred costs and attorney's fees in defending against the action, in an amount to be proved at the time of trial.
WHEREFORE, Plaintiff prays for judgement against MACKEEHAN as follows:
1. Compelling MCKEEHAN to specifically perform the lease and option to purchase by conveying Hangar H2 to Plaintiff in accordance with terms and conditions set forth in the contract between the parties.
2. Adjudging title to Hangar H2 vested in Plaintiff in fee simple free of all encumbrances.
3. That the court otherwise effect an adjustment of the rights, equities, and interests of MCKEEHAN and Plaintiff as is consistent with substantial justice to the parties under the circumstances of this case.
FOR DAMAGES AGAINST ALL DEFENDANTS
4. For compensatory damages in an amount to be proved at time of trial;
5. For general damages, in an amount to be proved at time of trial;
6. For damages for emotional and physical stress, as proved at time of trial;
7. For punitive and exemplary damages, as proved at time of trial;
8. For interest on such sums as may be determined to be due, as allowed by law;
9. For costs of suit herein incurred;
10. For such other and further relief as the court may deem just and proper.
DATED: October 19, 1999 [Signed by] Freda Pechner, attorney for Plaintiff