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8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
1/60
Case 2:14-cv-06609-PSG-VBK Document 1 Filed 08/22/14 Page 1 of 60 Page ID #:5
8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
2/60
TO
THE
CLERK OF
THE ABOVE-ENTITLED
COURT ANTI
TO
2
PLAINTIFF
WILLIAM
G.
BUSSEN,
AND HIS
COUNSEL
OF
RECORD:
3
PLEASE
TAKE
NOTICE that Defendant
Allianz Life
Insurance Company
4
of
North America
Allianz
hereby removes
to
this
Court
the
State
Court
action
5
described
herein and
avers
as
follows:
6
On
or about
July 18,
2014,
Plaintiff
William
G.
Bussen
Bussen
7 commenced
an
action
against Allianz
in
the
Superior
Court of
the
State of
8
California
fo r
the County of Los
Angeles
entitled
William
G.
Bussen
v
Westpark
9 Capital financial
Services,
LLC, et
al.,
Case
No. BC
552000 State
Court
10
Action .
True
and correct
copies of the
Summons
and
Complaint
in the
State
Court Action
are
attached
hereto
as
part
of
Exhibit
12
2. Plaintiff
William
G.
Bussen,
as
alleged
in
the Complaint,
is a
resident
13
of
the State
of
Missouri. Defendant
Allianz
is a
Minnesota corporation
with
its
14 principal
place of
business
in Golden
Valley,
Minnesota,
and
Allianz
is
informed
15
and believes
and alleges
thereon that Defendant
Westpark
Capital Financial
16 Services,
LLC
is
a
California
limited liability
company
with its principal
place
of
17 business
in
Los
Angeles,
California.
18
3.
On
or about July
24,
2014,
Allianzs
registered
agent
for service
of
19
process was
personally served
by
Bussen
with a
copy
of the
Summons
and
20
Complaint
in the State Court
Action.
21
4.
This
Notice
of Removal
is
filed
within
less than thirty
30 days
from
22 the
time Allianz
first had notice, through
service
or otherwise,
of the initial
23 pleadings
setting
forth
Bussens
claims
for
relief, and therefore
is within
the time
24
provided
by
law.
25 5.
To
the best of Allianzs
knowledge,
no
further proceedings
have
taken
26
place in the
State
Court
Action
other than
the
filing
of
the Summons
and
27
Complaint.
All
of
the
process,
pleadings
and
orders
served upon
or received
by
28 Allianz
in
this case
are
attached
as
Exhibit
to this
Notice.
36195393.2
Case 2:14-cv-06609-PSG-VBK Document 1 Filed 08/22/14 Page 2 of 60 Page ID #:6
8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
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6.
Allianz
is informed and
believes
and
alleges
thereon
that
no
2 Defendant
other
than
Allianz
has yet
been
served with the
Summons and
3 Complaint
in
the
State
Court
Action.
While
a
proof
of
service on
Allianz
has been
4
filed
in
the
State
Court Action
no
such
proof of
service
on
any
other
Defendant
5
has
been
filed
in
the State
Court
Action
as
of
the date
of
this
removal.
A true and
6 correct copy of
that
Proof of
Service on
Allianz
and the
State
Court
Action
7
computerized docket is attached
collectively as
Exhibit
2.
7.
The
State
Court Action
is, based on
the following
facts, a
civil
action
9
of
which
this
Court
has original
jurisdiction pursuant
to
2 U.S.C.
Sections
1331,
10 1367, and
1441(a):
Bussen
alleges
in his
Complaint a
claim
arising
under the
12 laws
of
the
United
States,
specifically
a
claim
for
alleged
fraud
in
13 connection
with
the
purchase
or
sale of
securities
under Section
10(b)
14
of
the Exchange Act
of
1934
and
Rule
l0 b - 5 thereunder,
15
specifically
alleging that Defendants
supposedly
offered
and
sold
a
16 purported
security by means
of
both written
and oral
communications
17
which
allegedly included
untrue statements
of
material
fact
and
18 allegedly
omitted
to state facts necessary
in order
to
make
the
19
statements in light
of the
circumstances
under which
they
were
made,
20
purportedly
not misleading.
Complaint Fifih
Cause
of
Action
21
22
23
24
/1/
25
II
26
/7/
27
/1/
28
/7/
2
36195393.2
Case 2:14-cv-06609-PSG-VBK Document 1 Filed 08/22/14 Page 3 of 60 Page ID #:7
8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
4/60
8.
Pursuant
to
the requirements
of 28
U.S.C.
Section
1446 d , Allianz
2 will promptly serve notice
of
the
filing
of
this Notice
of
Removal to Bussen
through
his counsel of record and will
promptly file with
the
Clerk
of the
State
4
Court
a
copy
of
the
Notice
of
Removal
6
ated
August 21, 2014
CARLTON
FIELDS
JORDEN
BURT LLP
MARK A.
NEUBAUER
7
MICHAEL A.
VALERIO
9
By: Zt
Attorney
for
Defenant
Allianz
Life
11
Insurance Companytof
North America
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
36195393 2
Case 2:14-cv-06609-PSG-VBK Document 1 Filed 08/22/14 Page 4 of 60 Page ID #:8
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XHI IT
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8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
7/60
S
UM
-2
00
A
S
HO
RT
TIT
LE
:
CASENUMBER
W
Illi
am
Bu
ssen
v
W
es
tPa
rk Fin
anc
ial Se
rvi
ces
LL
C a
t
al
I
NS
TR
UC
TIO
NS FO
R US
E
Th
is for
m
m
ay
be
us
ed
as a
n
atta
ch
men
t
to any
su
mm
ons
i
f sp
ace d
oes
not
pe
rmi
t the lis
ting
of
ll
par
ties
o
n th
e
s
um
mo
ns
f
thi
s
att
ach
men
t
s
us
ed
I
nse
rt t
he
fo
llow
in
g stat
em
ent
n the p
lai
ntif
f
o
r
defe
nd
ant
b
ox
on
the s
um
mon
s: A
ddit
ion
al
Pa
rtie
s
Att
ach
me
nt
for
m
s
att
ach
ed
Lis
t
ad
diti
ona
l
par
ties C
hec
k
on
ly
one
b
ox.
U
se
a
s
epa
rate
pag
e fo
r
ea
ch
typ
e
o
fpa
rty
:
Pla
inti
ff De
fen
dan
t Cr
oss
Co
mp
lain
an t
Cr
oss
De
fen
dan
t
LL
I N
Z
L
IFE
IN S
UR
N
CE
CO
M
F
IY Of
O
RT
M
ER
IC
a
M
in
nes
ota
C
orp
orat
ion
; an
d
D
O
ES
th
rou
gh
10
0
in
ctus
ive
Ps
ge
of
A
DD
IT
ION
AL P
AR
TIE
S AT
TA
CH
ME
NT
SUM.200 A
IRan.
anuary
1,
Oo
Atta
chm
en
t
to
Su
mm
ons
XH
I
IT
Case 2:14-cv-06609-PSG-VBK Document 1 Filed 08/22/14 Page 7 of 60 Page ID #:11
8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
8/60
WESTPARK
CAPITAL
FiNANCIAL
SERVICES LLC
a
California
Limited
Liability
Company;
ALLIANZ
LIFE
f
NS
UP
JN
COMPANY
OF
NORTH
AIVfERICA,
a
Minnesota
Corporation;
anc
DOES
through
100,
inclusive
Defendants.
PV
UL
18Z0h1t
Shorn
C let
EXocuwa
icUtIIL
By:
.1ud
L5ra
Deputy
CaseNo.
O
OO
COMPLAINT
FO
R:
1) BREACH
OP
FIDUCIARY
DUTY
2)
N
EG
LIG
EN
CE
;
3)
N
EG
LIG
EN
T
M
ISR
EP
RE
SEN
TA
TI
ON
;
4)
FRAUD
AND
IN
TEN
TI
ON
AL
M
IS
RE
PR
ESE
NT
AT
IO
N;
5) FRAUD
IN
C
ON
NE
CT
IO
N
w
TH
E
PURCHASE
OR
SALE
OF
SE
CU
RIT
IE
S
6)
BREACH
O
F
CONTRACT;
7) BREACH
OF
TH
E
COVENANT
OF
GOOD
F
AIT
H
AND
FA
IR
DEALING;
8)
UNFAIR
BUSINESS
P
RA
CT
IC
ES IN
VIOLATION
OF
S
ECT
iO
N
17200
OF
THE
CALIFORNIA
BUSINESS
AND
P
RO
FE
SS
ION
S
CODE;
9)
CONVERSION;
and
10 )
V
IOL
AT
IO
N OF
CA
LIF
OR
NI
A
PENAL
CODE
496.
JURY
TR
IAL
DEMANDED
COMPLArNT
PY
HOLMES
TAYLOR
JoNEs
LL
P
Andrew
B.
Holmes
SBN:
185401)
abh
olm
es
htii
aw.
com
801
SouthFigueroa
Street Suite
2170
Lo
sA
nge
les
California
90017
Tel:
r
3
985 2200
Fax:
C213)
973 6282
Attorneys
for
Plaintiff
William
G.
Bus
sen
SUPERIOR
CO
UR
T
OF THE STATE
OF
CA
LI
FO
RN
IA
COUNTY
OF
LOS
ANGELES
WILLIAM
G.
BUSSEN an
individual
Plaintiff
vs.
r4
t
Z
3 m
ow
w
o
t
111
4
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
8
19
2
21
22
23
24
25
26
27
28
EX
H
IBI
T
6
Case 2:14-cv-06609-PSG-VBK Document 1 Filed 08/22/14 Page 8 of 60 Page ID #:12
8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
9/60
I
PL
AI
NT
IFF WI
LL
I M
G
B
US
SEN
,
a
n
ind
ivi
dua
l,
he
reb
y
alle
ges as
f
ollo
ws
:
2
NTURE
OF
CLIM
3
Th
is
is a
com
pl
aint
for b
reac
h
o
f fi
duc
iary du
ty,
ne
glig
enc
e,
neg
lig
ent
4
m
isr
epr
ese
ntat
ion
,
frau
d
and
inte
ntio
nal
m
isre
pre
sen
tatio
n,
fr
aud
in
co
nn
ecti
on wi
th the
5
pu
rch
ase or s
ale
of
s
ecu
ritie
s,
br
eac
h
o
f co
ntr
act,
b
rea
ch
th
e co
ve
nan
t
of
goo
d
fa
ith
an
d
6
fai
r d
eali
ng,
un
fai
r
bu
sin
ess
p
rac
tice
s
in
viol
atio
n
17200
of the
Ca
lifo
rni
a Bus
ine
ss
an
d
7
Pr
ofe
ssio
ns
Co
de, co
nv
ersi
on,
an
d vio
lati
on
Ca
lifo
rnia
P
en
al
Co
de
4
96 and
rel
ate
d
8
c
laim
s
ar
isin
g
o
ut of
We
stp
ark
C
ap
ital
F
inan
cia
l
Ser
vice
s,
L
LC
s v
ari
ous ac
tion
s
an
d
9
inactions
surround ing
the purchase
of
an annuity
by
Plaintiff.
10
P
R
TIE
S
AN
D V
EN
UE
2
Pl
ain
tiffWE
LI
AIv
I
G
B
US
SEN
i
s
an
ind
ivi
dua
l resi
din
g in
Br
ans
on ,
12
M
iss
our
i.
3
3
U
pon in
for
mat
ion
an
d b
elie
f,
de
fen
dan
t W
E
STP
AR
K
C
AP
IT
AL
F
IN
NC
L
I
14
SE
RV
ICE
S,
L
LC h
ere
afte
r
WE
ST
PA
RK
is
a
Ca
lifo
rnia Lim
ited
Li
ab i
lity
C
om
pa
ny
15
wi
th
i
ts
pr
inci
pal
p
lac
e
o
f b
usi
nes
s
in
L
os
An
gel
es,
Ca
lifo
rni
a.
16
4
U
pon
in
for
ma
tion a
nd bel
ief,
de
fen
dan
t
AL
LI
AN
Z
LI
FE
IN
SU
RA
NC
E
17
COIvLPANY
OF N
OR
TH
A
ME
RI
CA
her
eaf
ter
A
LL
IAN
Z
is
a
M
inn
eso
ta
C
orp
ora
tion
18
wi
th its
p
rin
cipa
l
pl
ace
of
bus
ines
s
in
M
in
nea
po l
is,
M
in
nes
ota
.
19
5
P
lain
tiff
is
una
wa
re
t
he id
ent
ities
thos
e
d
efe
nda
nts
s
ued
as D
OE
S
2
0
th
rou
gh
100
a
nd
acc
ord
ing
ly
sue
s the
se
defe
nd
ants
un
der su
ch ficti
tiou
s
nam
es
.
P
lain
tiff is
21
i
nfo
rm
ed an
d
b
elie
ves
,
a
nd
t
her
eon
al
leg
es,
t
hat ea
ch
of
th
e f
ic tit
iou
sly-
nam
ed de
fen
dan
ts,
in
22
som
e
man
ner
,
pro
xim
ate
ly
ca
use
d
the d
am
age
s
a
lleg
ed her
ein.
P
lain
t iff w
ill seek
le
ave
o
f
23
th
is
Co
urt
to am
en
d
thi
s
Co
mp
lain
t
to
id
en ti
fy th
ese de
fen
dan
ts
on
ce the
ir
iden
titi
es are
24
ascertained.
2
5
6
P
lain
tif
f
is in
for
med an
d beli
eve
s,
a
nd
the
reo
n al
lege
s,
th
at
in co
mm
itti
ng
the
2
6
act
s
h
ere
in
alle
ged
,
def
end
ant
s,
and
ea
ch
them
,
w
ere
act
ing
as
the
ag
ent
s,
se
rva
nts an
d
27
e
mpl
oye
es
e
very
o
ther
de
fen
dan
t,
and
w
ere
act
ing
in
th
e c
our
se
an
d
sco
pe
o
f su
ch
a
gen
cy,
2
8
COMPLAINT
EX
H
IBIT
7
Case 2:14-cv-06609-PSG-VBK Document 1 Filed 08/22/14 Page 9 of 60 Page ID #:13
8/11/2019 WILLIAM G. BUSSEN v. WESTPARK CAPITAL FINANCIAL SERVICS LLC et al notice of removal
10/60
ser
vice
, o
r
em
pl
oym
en
t.
P
lain
tiff
is
f
urth
er
i
nfo
rme
d
and
be li
eve
s
an
d
ther
eon a
lle
ge s
tha
t
2
defendants,
and
each
of
them, author ized
and
ratified
the acts
of
every
other
defendant.
7
. Ve
nue
in
t
his
ju
dic i
al d
istr
ict is
p
rop
er
b
eca
use as
pec
ts
o
f
th
e
co
ntra
ct w
ere
to
4
b
e
o
r
w
er
e pe
rfor
me
d
i
n
this
dis
trict
,
and
th
e
tor t
ious
a
ctio
ns
o
ccu
rre
d
in t
his
dis
trict
.
5
G
EN
ER
L
LL
EG
T
ION
S
6
8.
A
t
t
he
ti
me
o
f th
e
inv
est
me
nt
d
esc
ribe
d
he
rein
,
P
lain
tiff
w
as
a
lo
cal
sup
erv
isor
7
f
or
Va
lor
Tel
eco
m. H
e
rel
ies
on
oth
ers
to
d
o
his in
ves
ting fo
r
him
.
He i
s
an
u
nso
phi
stic
ated
8
i
nve
sto
r,
and at
the
ti
me
of
t
he
e
ven
ts rel
eva
nt her
eto ,
had
l
ittle or
n
o
und
ers
tan
din
g
of
9
securities ,
necessary disclosures,
or the
rules, regulations
and sta tutes
tha t
govern the
1
0
p
urc
has
e
an
d
sale
o
f s
ecu
riti
es.
9
. Upo
n i
nfo
rma
tio
n
an
d b
elie
f, at
al
l
re
lev
ant
t
ime
s here
to,
ana
W. P
hilp
ot
12
(h
ere
afte
r Ph
ilpo
t)
was
a re
gis
tere
d re
pre
sen
tati
ve
o
fW
ES
TP
AR
K.
On in
for
ma
tion
an
d
I :Ic IU
13
beli
ef,
P
hilp
ot
al
so
use
s the n
am
e D
an
Ph
ilp
ot.
A
t
al
l
tim
es
r
elev
an t h
ere
to,
P
hilp
ot
wa
s
1
4
a
n
age
nt
o
f
WE
ST
PAR
K
.
1
5
10
.
Upo
n in
for
ma
tion
an
d be
lief
, at
all
r
ele
van
t
ti
me
s
he
ret
o,
P
hilp
ot
w
as an
1
6
ins
ura
nce
a
gen
t
l
icen
sed
b
y
th
e
st
ate o
f
N
ew
M
ex
ico (L
ice
nse
0E
88
114
),
an
d
w
as
an
17
ap
poi
nted
a
gen
t
o
f A
LL
IA
NZ
.
A
s
su
ch,
a
t
a
ll
tim
es re
lev
ant he
reto
, Ph i
lpo
t
wa
s als
o
an
18
a
gen
t of
A
LL
IA
NZ
.
1
9
11.
De
fend
an
ts,
b
y
an
d
thro
ug
h
P
hil
pot
, d
isc
usse
d the
p
urc
has
e
of
an
A
llia
nz
20
R
ew
ard
s
a
nnu
ity wit
h Pla
in t
iff
in
or ab
ou
t
M
arc
h o
f
2
00
6.
Dur
ing
the
cou
rse of
th
ese
2
1
di
scu
ssio
ns, Plai
ntif
f
in
for
me
d D
efe
nda
nts
th
at
he ha
d
l
ost
a
bou
t
hal
f
o
f
t
he
a
pp
rox
ima
tely
22
1
,000
,00
0
he had
h
ad
inve
ste
d wi
th
Sm
ith Ba
rne
y
fo
llow
ing
9/1
1, an
d he w
an
ted a
n
2
3
i
nve
stm
ent
th
at
wou
ld
as
sur
e hi
m
a
re
tire
men
t
n
es t
egg a
nd cou
ld
not dro
p
to
z
ero
.
24
12.
Furthe r,
Plaintiff
explained
to
Defendants that he
wanted
to
retire
e
arly
,
a
nd
2
5
wo
uld
o
nly m
ake
this
inv
estm
en
t
if
he
cou
ld wi
thdr
aw e
nou
gh
mo
ney
to l
ive o
n, ther
eby
26
al
low
ing him
to
r
etir
e.
D
efe
nda
nts
as
sur
ed
P
lain
tiff
that
b
eca
use o
f th
e
7
%
gu
ara
ntee
in
t
he
27
a
nnu
ity
,
Pl
ain
tiff co
uld r
etir
e.
28
O
MP
L
IN
T
EX
H
I IT
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13.
But
for
Defendants
representations, Plaintiff
would
have continued
working
2
and
saving towards
a
larger nest-egg
to
provide
him
with
an
income sufficient
to
support
his
retirement income needs.
4
14. Plaintiff
in
fact
relied
on
Defendants
false
promises, retired
early,
and
became
unable
to
earn
income
as
a result.
6
15.
While
Defendants,
by
and through
Philpot,
provided
a prospectus
for
an
7
Allianz
Rewards
annuity,
Plaintiff did
not understand
the prospectus,
and
therefore
asked
8
Defendants,
by
and
through Philpot,
for an explanation
of the annuity.
9
16.
Defendants
made
the
following written representations
via
to
Plaintiff
on
10
March
28, 2006 at 10:14 a.m.:
11
The annuity
would allow
for
9% annual
withdrawals;
12
The annuity
would have
a
balance
of
between
387,000 (Worst Case
pushina
the
extreme)
and
548,000
(Best Case
conservative
13
estimat at
the end of
the tenth
policy
year
even with the
9%
annual
withdrawa[s.
14
15
A
true
and
correct
copy
of
this
is
attached
hereto
as Exhibit
A.
16
17.
Plaintiff also
understood
from
Defendants
(through
Philpot),
as
confirmed
by
17
the
e-mail, that the ending value
could be
annuitized
or could be
left
in
place
with
the
18
guarantees
remaining
viable.
19
18. As
a result
of
and
in reliance
on the explicit
representations
of
Defendants,
20
Plaintiff paid
448,062.35
for
Allianz
Rewards
annuity
Contract
DA026630
(annuity)
on
21
or
about
April
19, 2006,
and Defendants,
through
Philpot, set up
a monthly
withdrawal
22
program of
3,750 ( 45,000
per
year)
so
that
Plaintiff
could retire
early
and
live
off
his
23
annuity.
24
19.
Defendants, through Philpot, acting
as a
discretionary investment
advisor,
25
directed
the
investments within the
annuity,
without
consulting
Plaintiff,
pursuant
to
an
26
authorization
for
him to
do so
that is right
on
the
application
(See
application
at
number
8;
a
true and
correct copy
of the application
is
attached
hereto
as
Exhibit
B).
Aside from this,
28
Plaintiff
never
signed
authorizations
or gave
investment
instructions.
Plaintiff
was
relying
-3-
COMPLAINT
EXHI IT
9
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entirely
on
Defendants
to
obtain
the
promised
returns.
On
information
and
belief,
2
Defendants (through
Phulpot)
changed the
investment
program within
a
couple
of
months
of
3
opening
the annuity.
4
20.
At
some
point prior
to the
purchase
of
the
annuity,
Defendants (through
5
Philpot)
told
laintiff
that
the
investments did
not
matter
so much
because
of
the
guaranty,
6
and
that
the only effect
of
the investments
would
be
to
improve
upon
the
7
guaranteed
7
return.
8
21.
laintiff turned 62
years
old
in 2012,
and
as
a
result
emailed
questions
to
9
Defendants, by
and through Philpot, on
December
11,
2012
regarding whether
to take
his
10
social
security
at
that
time.
Such
a
decision depended
on
verification
that
the
promised
11
contract
value
would
be
there
at
the end
of the
tenth
policy
year
in
2016.
12
22.
laintiff had
a
vecy
difficult
time
getting
Phulpot
to respond
to him,
but
finally
13
spoke
with Philpot
in
early 2013. Philpot told
Plaintiff
to take
his
social
security
because
the
14
annuity
value
could drop
to
zero.
This
was
the
first time
Plaintiff
learned
that
the annuity
15
might not
perform
according
to the
written
Best
Case
and
Worst Case
guarantees
16
provided
by Defendants
(through
Philpot).
Whe
Plaintiff
asked about
the
7
contractual
17
guarantee,
Philpot said
he
would
have to get
back
to h im,
but
never
did.
18
23.
Since then,
Plaintiff has
made multiple
requests
for the back-up
relied
on
by
19
Defendants
agent
Philpot
for
the March
28, 2006
email,
but
has
never
received
anything.
20
24.
Contrary
to the
statements
made
to Plaintiff
by
Defendants
(through
Philpot),
21
under
no circumstances was
the balance
specifically
stated
in
Philpots
available
for
22
withdrawal at the
end
of
years.
23
25.
Notwithstanding
Defendants
representations
and
guarantees,
Plaintiffs
24
annuity has
a
value
(as
of
June
30,
2014)
of
130,357.70. (A
true
and
correct
copy
of
the
25
Allianz Rewards
account
statement
reflecting
this
value
is
attached
hereto
as
xhibit
C.)
26
26.
As
a
result
of
Defendants
actions,
Plaintiff
is fearful
for
his
and
his
familys
27
well-being as
a
result
of
discovering that
they
wilt
no t
have
sufficient
funds
to provide
for
28
them
during their
retirement.
-4-
OMPL INT
X
HI
IT
10
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AP
PL
ICA
BL
E
F
IN
RA RU
LE
S
2
27. FINRA Rule 2010
is
entitled Standards
of
Commercial Honor and Princ iples
3
o
f Tr
ade
an
d
stat
es: A m
em
ber,
in
th
e con
duc
t
o its
bus
ine
ss, sha
ll obs
erv
e
hig
h
4
sta
nda
rds
of
com
me
rci
al
h
ono
r an
d
j
ust an
d equ
itab
le
p
rinc
ipl
es
of
trad
e.
5
2
8. As
a re
sul
t
of D
efe
nda
nts
act
ion
s,
as
d
esc
ribe
d
a
bov
e, D
ef
end
ant
s
v
iol
ated
6
th
isFI
NR
AR
ule
O
lO
7
29.
fIN
RA R
ule 202
0, ent
it led Us
e
o
f
Ma
nip
ulat
ive
,
Dec
ept
ive
o
r
O
the
r
8
fr
aud
ule
nt
De
vice
s sta
tes:
N
o
m
em
be
r
s
ha l
l ef
fec
t any
tr
ans
acti
on in,
or
indu
ce
the
9
pu rchase or sale
of,
any security by means
of
ny
manipulative, deceptive or other
fraudu lent
10
de
vice
or
con
triv
anc
e.
11
30
.
D
efe
nda
nts
o
ral
and
wr
itte
n stat
eme
nts
wer
e
m
ad
e in
or
der to c
aus
e P
lain
tiff
12
to i
nve
st. A
s
des
crib
ed ab
ove
, tho
se
s
ta te
me
nts wer
e man
ipu
lat
ive and
lor
dec
epti
ve,
a
nd
13
th
ere
for
e
v
iola
te
FIN
RA
Ru
le
20
20.
14
3
FI
NR
A
R
ul
e
2
111
, e
nti
tled
Su
itab
ility
,
sta
tes
:
15
a A m
em
be
r
or an
ass
oc ia
ted
pe
rso
n
m
ust
h
ave
a
re
aso
nab
le ba
sis
to
bel
iev
e
th
at
a
rec
om
me
nde
d
tr
ans
acti
on
or
in
ves
tme
nt
stra
teg
y
inv
olv
ing
a se
cur
ity
o
r
16
secu
rit
ies is
sui
tab
le
fo
r
th
e
cust
om
er, b
ase
d
o
n
th
e
inf
orm
ati
on
o
bta
ine
d
through
the
reasonable
diligence
of
the
member
or associated person
to
17
a
sce
rtai
n the
cu
stom
er
s
inv
estm
en
t
pro
file.
A
cus
tom
er
s
i
nve
stm
en
t
pr
ofil
e
inc
lud
es,
b
ut
is
not
lim
ite
d
to,
the cus
tom
er
s
a
ge,
oth
er
in
ves
tme
nts
,
f
inan
cia
l
18
sit
uat
ion
a
nd n
eed
s,
tax
s
tatu
s,
i
nve
stm
ent
ob
ject
ive
s, in
ves
tme
nt
e
xp
erie
nce
,
inv
est
men
t
tim
e
ho
rizo
n,
liq
uid
ity
n
eed
s,
ris
k tole
ran
ce,
an
d any
oth
er
19
in
form
ati
on
the
c
us to
me
r
m
ay d is
clo
se to th
e
m
em
be
r
or
asso
cia
ted
p
ers
on in
c
onn
ect
ion
wIt
h
su
ch
r
eco
mm
end
ati
on .
2
0
32.
As
a res
ult of t
he
actu
al
pe
rfo
rma
nce
and li
mit
atio
ns o th
e
an
nui
ty sol
d
to
2
1
P
lain
tiff
,
a
nd in
ligh
t
of
the in
ves
tme
nt
ob j
ecti
ves Pl
ain
tiff
sp
eci
fica
lly
sta
ted
to
De
fend
an
ts
2
2
thr
oug
h
P
hilp
ot
,
t
he
ann
uit
y
was a
n
u
nsu
itab
le
inv
estm
en
t.
23
3
3.
FI
NR
A
Ru
le 2
21
0,
ent
itle
d C
om
mu
nic
atio
ns
w
ith the
Pu
blic
sta
tes ,
in
24
r
elev
ant
pa
rt:
2
5
d
C
on
tent St
and
ard
s
2
6
1
G
en
era
l
S
tand
ard
s
A A
ll
m
em
ber
com
mu
mc
atio
ns m
us
t
be
bas
ed on pri
nci
ple
s
o
f
2
7
fa
ir
de
alin
g
a
nd
goo
d
fa
ith,
m
us
t
be
f
air a
nd ba
lan
ced
,
a
nd
mu
st
pr
ovi
de
a
s
oun
d
bas
is
for ev
alu
atin
g
the
fac
ts i
n re
ga
rd
to
any
p
arti
cula
r
sec
urit
y
28
or
typ
e o
f
sec
urit
y,
i
ndu
str
y, o
r
se
rvic
e.
No
m
em
ber m
ay
om
it
any
OMPL INT
EX
H
IBIT
11
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material
factor
qualification
if the
omission,
in
light
of
the
context
of
I
the
material
presented,
would
cause the
communications
to
be
misleading.
2 B
No
member
may
make
any
false
exaggerated
unwarranted promissory
or misleading
statement
or
claim
in
any
communication.
No
member
may
publish,
circulate
or
distribute
any
communication
that the
member knows
or has
reason
to know contains
4
any untrue statement
of
a material
fact
or is otherwise
false
or
misleading.
5
C
Infonnation
may be
placed
in
a
legend
or
footnote
only
in
the event
that
such
placement
would
not
inhibit
an
investors
6
understanding
of the
communication.
D Members
must
ensure
that
statements
are
clear
and
not
7
misleading
within
the
context
in which
they
are
made
and that
they
provide
balanced treatment
of
risks
and
potential
benefits.
8
Communications
must
be
consistent with
the
risks
of
fluctuating
prices
and
the
uncertainty of dividends,
rates
of return
and
yield inherent
to
9
investments.
CE
Members
must
consider
the
nature
of the
audience
to which
10
the
communication
will
be
directed
and
must provide
details
and
explanations
appropriate
to
the audience.
11
F
Communications
may
not predict
or project
performance
imply
that
past performance
will recur
or
make any
exaggerated
or
12
unwarranted
claim,
opinion or
forecast...
Id.,
emphasis added.
14
34. The
Exhibit
A contains
exactly
the type
of
prohibited
performance
15
predictions specifically
forbidden
by
this FINRA
rule.
=
16
35.
FINRA Rule 3110,
entitled
Supervision,
states at
subdivision
a :
17
Each
member
shall establish
and
maintain
a
system
to
supervise
the
activities
of
each associated person
that is
reasonably
designed
to
achieve
compliance
18
with
applicable securities
laws
and
regulations,
and
with
applicable
FI
IR
rules.
19
Rule
3110
further
states, in
relevant
part:
20
b
Written Procedures
21
22
23
4
Review of Correspondence
and Internal
Communications
The supervisory
procedures required
by
this
paragraph
b
shall
include
4
procedures
for the review
of incoming
and
outgoing
written
including
electronic correspondence
and
internal
communications
relating
to the
25
members
investment
banking
or
securities
business.
The
supervisory
procedures
must
be
appropriate
for
the
members
business,
size,
structure,
and
26
customers. The
supervisory
procedures
must require the
members
review
of:
27
A
incoming
and outgoing
written
including
electronic
cOrrespondence to properly
identify
and handle in accordance
with
finn
8
procedures, customer
complaints,
instructions,
funds and
securities,
and
-6-
COMPLAINT
EX
HI
IT
12
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communications
that are
of
a
subject
matter
that
require
review under
FINRA
rules
and federal
securities
laws.
2
36.
On
information
and
belief, Philpot
s
use
of
an
outside
email to communicate
with
Plaintiff
see
Exhibit
A,
which was
sent
from
Philpots
AOL email
account
reflects
4
Defendants
failure to properly
supervise
Philpot
pe r FINR
Rule
3110, and, as
per FINRA
5
Rule
3110 a ,
final
responsibility
for
proper
supervision
shall
rest with
the
member.
6
FifiST CAUSE
OF
CTION
BREACH
OF FIDUCIARY
DUTY
7
Against
All Defendants
8
37.
Plaintiff re-alleges and
reincorporates
each
and every
allegation
contained
in
9
the
General Allegations
and all
previous paragraphs of
all
previous sections
and Causes
of
10
Action
in this Complaint,
inclusive,
as though
fully set
forth herein.
11
32.
Plaintiff
is
a
securities brokerage
client of
Defendant
WESTPARK.
Defendant
12
WESIP RK through
Philpot
had discretionary
control
over
Plaintiffs
investments,
and
a
13
confidential relationship
existed
between
Plaintiff
and Defendant
WESTPARK
through
L
14
Phflpot , as
Plaintiff reposed
trust
and
confidence
in the
integrity
and fidelity
of
Defendant
15
WESIT RK directly
and through
Philpot .
As
such,
Defendant
WESTPARK
owed
a
16
fiduciary
duty
to
Plaintifl
17
39. Plaintiff is also a
client
of
Defendant
ALLIANZ.
As
described
above
Plaintiff
18
told
Philpot,
an
agent
of
Defendant
ALLIANZ,
what
his
investmentinsurance
needs
and
19
goals
were,
and
Philpot
then
told Plaintiff
about the
ALLIANZ
product
and
made
the
20
misrepresentations
listed
above.
The
particular
ALLIANZ
annuity
product
was
selected by
21
PhHpot for
Plaintiff
as
appropriate
for
Plaintiff
in
light
of
Plaintiffs
expressed
needs
and
22
desires.
Because of
Philpot/ALLIANZs
role
in
advising
Plaintiff
ofthe appropriate
annuity
23
for
Plaintiffs
particular
needs
and
goals,
Philpot
was also acting
as
an
agent
for
Plaintiff.
24
As
such,
a
confidential relationship existed between Plaintiff
and
Defendant ALLIANZ
25
through
Philpot ,
as
Plaintiff
reposed trust
and
confidence
in
the
integrity and
fidelity
of
26
Defendant
ALLIANZ
directly
and
through
Philpot . As
such,
Defendant ALLIANZ
owed
a
7
fiduciary
duty
to
Plaintiff.
28
-7-
COMPL INT
EXHI IT
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40.
Defendants, and
each
of
them, breached their fiduciary duty
to Plaintiff
by
2
engaging
in
the course
of
conduct alleged herein.
3
41.
Defendants, and each of them,
breached their fiduciary
duties
to Plaintiff
by
4
engaging
in
the course
of
conduct alleged herein,
and
such course of conduct was pursued
5
without
due
regard
for
and in reckless
and
conscious
disregard
of
the consequences and
6
damage
to
Plaintiff Upon
information and belief,
each Defendant,
individually, aided
and
7
abetted
the
breach
of
fiduciary duty
by
each other Defendant.
8
42.
Defendants
pursued
such
course
of conduct
negligently
and/or
intentionally
9
while disregarding the rights
of Plaintiff
and
with
a
negligent and/or fraudulent and/or
10
reckless
disregard
of
the likelihood of
causing
Plaintiff
economic damage and/or
at
all
times
to
further
their
own
economic
interest
at
the expense of Plaintiffs
economic
interest.
12
43.
As a
proximate
result
of
the
conduct
of
Defendants
as
herein
alleged,
Plaintiff
13
has been
damaged in
a
sum
according to proof
at
time
of
trial,
including
interest,
attorneys
14
fees and costs .
15
SE OND USE
OF CTION
NEGLIGENCE
16
Against All
Defendants
17
44.
Plaintiff
re-alleges and
reincorporates
each
and
every
allegation contained
in
12
the
General
Allegations
and all previous paragraphs
of
all
previous
sections and
Causes
of
19
Action
in
this
Complaint,
inclusive, as though
fully
set forth
herein.
20
45.
A
special
relationship
of
trust
and
confidence
existed between
Plaintiff
and
21
Defendants. As
alleged herein, Defendants
owed
a
duty
including a
fiduciary duty
to
22
Plaintiff. Defendants breached
that duty by their
actions and
inactions, as alleged
herein.
23
46.
As
a
proximate
result
of
the
negligent
conduct of
Defendants
as
herein alleged,
24
Plaintiff
has incurred damages
in
an
amount
according
to
proof
at time
of
hearing,
including
25
interest,
attorneys
fees
and
costs.
26
27
III
28
/1/
-8-
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EXHI IT
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T
HIR
D
C
AU
SE
OF A
CT
ION
NEGLIGENT
MISREPRESENTAITON
2
Ag
ain
st
Al
l
De
fen
dan
ts
47
Pla
intif
f
r
e-al
leg
es and
re
inco
rpo
rat
es
e
ach
a
nd eve
ry
al
leg
atio
n con
tain
ed
in
4
the
Gen
era
l
Al
leg
atio
ns
an
d
all
p
rev
iou
s pa
rag
rap
hs
of
all
p
rev
iou
s sec
tion
s
and
Cau
ses of
5
A
ctio
n
i
n
th
is C
om
pla
int
,
inc
lusi
ve,
as
th
oug
h
f
ully
se
t
fo
rth
here
in.
6
48 P
lai
ntif
f
a
lleg
es on in
for
mat
ion
an
d bel
ief th
at
eac
h of
th
e
r
epr
ese
nta
tion
s
7
des
cri
bed abo
ve
w
as fa
lse
or mi
sle
adin
g
w
he
n
ma
de
by
D
efe
nda
nts
as de
scr
ibed
a
bov
e,
8
w
as
m
ad
e
with
ou
t a r
eas
ona
ble
bas
is f
or
b
elie
vin
g
it
to
b
e t
rue
.
T
he rep
res
ent
atio
ns w
ere
9
made with the intent
to induce
Plaintiffs
reliance
thereon,
and
Plaintiff
did, in fact,
1
r
eas
ona
bly
re
ly
on
De
fen
dan
ts
repr
ese
nta
tion
s i
n his
d
ec
isio
n
t
o
in
ves
t wit
h
De
fen
dan
ts
as
h
erei
n
al
leg
ed.
12
49 Eac
h
o
f
th
e
De
fen
dan
ts
ha
d
a
du
ty
to
disc
los
e
the
true
in
for
ma
tion o
n
the
13
gr
oun
ds
th
at th
e in
form
ati
on
w
as ma
ter
ial
to
t
he inv
est
me
nts
all
ege
d
here
in.
D
efen
dan
ts
14
fa il
ure
to
di
sclo
se
t
hes
e
ma
teri
al
fac
ts
to P
lai
ntif
f,
th
ere
fore
,
con
stit
utes
neg
lig
en t
I i
15
mis
rep
rese
nta
tion
.
16
5
Ha
d Pla
int
iff
kn
ow
n o
f
the
t
rue
fa
cts
as
de
scr
ibed
h
erei
nab
ove
, P
lain
tif
f
wo
uld
17
no
t
h
ave
in
ve
sted
,
n
or reti
red
e
arly
,
f
org
oin
g
a
ddi
tion
al
c
om
pen
sati
on
and
m
ak
ing
nee
ded
18
add
itio
na
l
c
on
trib
utio
ns
to
his
re
tire
me
nt
sa
ving
s.
19
51
As
a
prox
im
ate
r
esu
lt
of
th
e
con
duc
t
of De
fen
dan
ts
as
h
ere
in
al
lege
d,
Pla
inti
ff
ha
s
in
cu
rred
dam
ag
es
in th
at P
lai
ntif
f
w
as in
duc
ed
to i
nve
st, all b
y rea
son
o
f
whi
ch
P
lai
ntif
f
21
ha
s
be
en
da
ma
ged
i
n
at le
ast
a
su
m in exc
ess of
the
jur
isdi
ctio
nal
a
mou
nt
of
t
his
Co
urt
, and
2
2
ad
diti
ona
l
a
mo
unt
s
ac
cord
ing
to
p
roo
f
at ti
me
o
f
tr
ial,
i
ncl
udi
ng
inte
res
t,
a
ttor
ney
s
fe
es
and
23
co
sts.
F
OU
RT
H C
AU
SE
OF
AC
TIO
N
FR
A
UD
AN
D IN
TE
NT
ION
A
L M
ISR
EP
RE
SEN
TA
TI
ON
2
5
A
gai
nst All
D
ef
end
ants
26
52
P
lain
tiff re
-all
ege
s
a
nd
rein
co
rpor
ate
s
ea
ch
and e
ver
y
alle
gat
ion
co
nta
ine
d in
2
7
t
he
G
ene
ral
Al
lega
tio
ns
and
all
pre
vio
us
p
arag
rap
hs of
all
p
rev
ious
se
ctio
ns
an
d C
aus
es
o
f
2
8
Ac
tio
n
in
th
is
Co
mp
lain
t,
in
clu
sive
,
as thou
gh f
ully
s
et
fo
rth
he
rei
n.
COMPL INT
EX
HI
BIT
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53.
At
the
time
that
laintiff
was induced
to
make
the
investments
alleged
herein,
2
and
continuing thereafter,
Plaintiff
was
led
to believe
that
the
representations
made
by
Defendants
and
delivered
to
Plaintiff
as
alleged
herein, were
true.
4
54.
When
Defendants, and each
of them,
made
or
adopted
the above
5
representations,
they
knew
or
were
reckless
in not knowing
them
to
be false
and
made
6
these
representations
with
the
intention
to
induce
Plaintiff
to
act
in
reliance
on
these
7
representations
in
the manner
herein
alleged
by purchasing
the
annuity.
8
55.
laintiff
at
the
time
these representations
were
made
by
Defendants, and
each
9
of
them, and
at
the time
Plaintiff
took
the
actions
herein
alleged, was
unaware
of
the
falsity
10
of
Defendants
representations
and
believed
them
to
be
true.
In reliance
on
these
representations,
Plaintiffwas induced
to
and
did
invest.
12
56.
Had
Plaintiff
known
of
the
true
facts
as
described
hereinabove,
Plaintiff
would
s
13
not have
invested,
no r
retired
early,
forgoing additional
compensation
and
making
needed
14
additional contributions
to
his
retirement
savings.
15
57.
Plaintiffs
reliance
on
the
representations
of
Defendants
was justified
because
16
of
Plaintiffs
lack
of investment
sophistication,
Defendants
superior
knowledge
and
17
expertise,
as
well
as
the
written
projections and guarantees
provided.
18
58.
As
a proximate
result
of
the
conduct
of Defendants
as herein
alleged,
laintiff
19
has
incurred
damages
in
that
Plaintiff
was
induced
to
invest,
all
by
reason
of
which
Plaintiff
20
has been
damaged
in
at
least
a
sum
in excess
of
the
jurisdictional
amount
of
this Court,
and
21
additional
amounts according
to
proof
at time
of
trial.
22
59.
As
a
further result
of
Defendants
actions,
Plaintiff
is
fearful
for
his
and
his
23
familys
well-being
as a
result
of
discovering
that
they
will
not have
sufficient
funds
to
24
provide
for
them
during their retirement.
25
60.
The aforementioned
conduct
of
Defendants,
ahd
each
of them,
was
an
26
intentional
misrepresentation,
deceit,
or
concealment
of
a
material
fact
known
to each
of
the
27
defendants with
the
intention
on
the
part of
the
defendants
of
thereby
depriving
Plaintiff
of
28
property
or
legal
rights
or
otherwise
causing
injury, and
was
despicable
conduct
that
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XH
I I
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subjected
Plaintiff to
a cruel
and
unjust
hardship
and conscious
disregard
ofPlaintiffs
2
rights,
so
as to
justify
an award
of
exemplary and punitive damages.
3
FIFTH
CAUSE
OF
ACTION
4
FRAUD
IN
CONI>JECIION
WITH
THE
PURCHASE
OR
SALE
Of
SECURITIES
Violation
of
10 b
of
the
Exchange
Act
of
1934,
and
Rule
I Ob-5
thereunder
5
Against
All
Defendants
6
61.
Plaintiff
re-alleges
and
reincorporates each and
every
allegation
contained
in
7
the
General
Allegations
and
all previous
paragraphs
of
all
previous sections
and Causes
of
8
Action
in
this Complaint,
inclusive,
as
though
fully
set
forth
herein.
9
62.
Defendants, and each
of
them,
by
engaging
in
the
conduct
described above,
10
offered
and
sold
a
security
in the
state
of
California
by
means
of both written
and
oral
communications
which
included
untrue
statements
of
material fact
and
omitted
to
state
12
material
facts necessary
in
order to make
the
statements
made, in light
of the
circumstances
13
under
which
they were
made,
not misleading.
14
63.
As a
proximate
result
of
the
conduct
of
Defendants
as herein
alleged,
Plaintiff
15
has
incurred damages
in
that
Plaintiff
was induced
to invest
in
the fraudulent
investment
16
scheme, all by reason
of
which Plaintiff
has been
damaged
in
at least a
sum in
excess
of the
17
jurisdictional
amount
of
this
Court,
and
additional
amounts
according
to
proof at
time
of
18
trial, including
interest,
attorneys
fees and
costs.
19
64.
The
aforementioned
conduct
ofDefendants,
and
each
of them,
was
an
20
intentional misrepresentation,
deceit,
or
concealment of
a material
fact
known
to
each
of the
21
defendants with
the
intention
on
the
part of the
defendants
of
thereby
depriving
Plaintiff
of
22
property
or
legal
rights
or otherwise causing
injury, and
was despicable
conduct
that
23
subjected
Plaintiff to
a
cruel
and
unjust hardship
and conscious
disregard
of
Plaintiffs
rights,
so
as
to
justify
an award
of
exemplary and punitive damages
25
III
26
III
7
7
28
III
ii
COMPL INT
XH
I
IT
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SIXTH
CAUSE
OF CTION
BREACH
OF
CONTRACT
2
Against
All
Defendants
65.
Plaintiff re-alleges
and
reincorporates
each
and every
allegation
contained
in
4
the
General
Allegations
and
all
previous paragraphs
of all previous
sections
and
Causes
of
5
Action in
this
Complaint,
inclusive,
as
though
fully set forth
herein.
6
66.
Defendants
through
Philpot agreed
to
provide
Plaintiff
with an
annuity
7
product
that performed
according to the
representations
made
in
Exhibit
A in exchange
for
8
Plaintiffs
investment. That
agreement
constitutes
a contract.
9
67.
Plaintiff
has, at
all
times,
performed each
and
every condition,
covenant
and
10
obligation
required
of
Plaintiff
under
the
parties
contracts
except for the
performance
of
such conditions,
covenants
and obligations
which
have
been
waived,
prevented
or
excused.
12
68.
Defendants
have
failed to honor
its
obligations
under,
and has
materially
13
breached,
the contrac ts and the
implied covenants
therein
by,
among other
things,
failing
to
4
14
abide
by
their
terms
and
conditions,
including
but not limited
to
misrepresentation
of
15
material
facts
and
arbitrary
and
improper
failure
to disclose
material
facts, to
Plaintiff.
16
69.
Plaintiff
did
not discover Defendants
breach
of contract
until
within
two years
17
of
the f il ing of
this
Complaint.
18
70.
As
a proximate
result of the
conduct
of
Defendants
as herein
alleged,
Plaintiff
19
has incurred
damages
in that
Plaintiff
was
induced
to
invest
in reliance
on the
terms
of the
20
contract
described above,
all by
reason
of
which Plaintiff has
been
damaged
in
at
least a
sum
21
in
excess
of
the jurisdictional amount
of
this
Court,
and
additional
amounts
according
to
22
proof
at
time of trial,
including interest,
attorneys
fees
and
costs.
23
SEVENTH
CAUSE
OF
ACTION
BREACH
OF THE
COVENANT
OF
GOOD FAITH AND
F IR
DEALING
24
Against
All Defendants
25
71.
Plaintiff re-alleges
and
reincorporates
each
and
every
allegation
contained
in
the
General
Allegations
and all previous
paragraphs
of
all previous
sections
and
Causes
of
27
Action
in
this
Complaint,
inclusive,
as
though
fully
set
forth
herein.
28
-12-
COMPLArNT
EXHI IT
18
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72. Implied in
the agreement
between
Plaintiff and
Defendants
described above
is
2
a
covenant
of
good
faith and
fair dealing.
The covenant
provides
that
no pafty
will
do
anything
that
will
have
the
effect
of
iinpafring,
destroying
or
injuring
the rights of
the
other
party
to
receive the
benefits
of their
agreement.
The
law
implies
a
covenant
in
all
5
agreements that
each
party
will
do
all
things reasonably
contemplated
by the terms of
the
6
agreement
to
accomplish
its
purpose.
7
73,
By
performing
the
acts described
above,
Defendants
have
breached
the
8
covenant
of
good
faith
and
fair
dealing
by violating
the spirit
of
the
agreement.
9
74.
As a
proximate result
of
the
conduct
of
Defendants
as
herein alleged,
Plaintiff
10
has
incurred damages
in
at
least
a sum in
excess
of the
jurisdictional amount
of this
Court,
and
additional
amounts
according to
proof at
time
of
trial,
including
interest,
attorneys
fees
12
andcosts
13
EIGHTH
CAUSE
OF
ACTION
14
UNFAIR
BUSINESS
PRACTICES
In
Violation
of
17200
et
seq.
of
the
California
Business
and
Professions
Code
15
Against
All Defendants
16
75.
Plaintiff
re-alleges
and
reincorporates
each
and
every allegation
contained
in
17
the
General
Allegations and
all
previous
paragraphs
of
all
previous
sections
and
Causes
of
18
Action
in
this
Complaint,
inclusive,
as though
fully
set
forth
herein.
19
76.
Pursuant
to
17200
et seq.
of
the
California
Business
and
Professions
Code,
20
unfair
business
practices
include
any
unlawful,
unfair
or fraudulent
business
practice.
The
21
fraudulent
and
unlawful
conduct
ofDefendants
as
alleged
herein
is an
unlawful
and
22
fraudulent practice
within
the
provisions
of
17200
et
seq.
of
the
California
Business
and
23
Professions Code, and,
accordingly,
constitutes
a violation
of
17200
et
seq.
of
the
California Business
and
Professions
Code.
25
77.
As a
direct and
proximate result
of the
unfair
business
practices
of
Defendants
6
as
herein
alleged,
Plaintiff
has
incurred
damages
in
that
Plaintiffwas
induced
to invest
in
the
27
fraudulent investment scheme,
all
by
reason
ofwhich
Plaintiff is
entitled
to
restitution
in
an
28
-13-
COMPLAINT
X
HI
IT
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I
amount
according
to proof
at
time
of trial, plus
interest,
attorneys
fees
pursuant
to
2
California
Code
of
Civil Procedure
1021.5, and
costs.
MNTH
USE
OF
ACTION
4
CONVERSION
Fo r
Violation
of California
Penal
Code
496
5
Against All Defendants)
6
78. Plaintiff
re-alleges
and
reincorporates each
and every
allegation
contained
in
7
the General
Allegations and all previous
paragraphs
of all
previous
sections
and
Causes
of
8
Action
in
this Complaint,
inclusive,
as though
fully
set
forth
herein.
9 79.
Plaintiff
is,
and
at
all
times
relevant
herein was, the owner
of
or
entitled
to
10
immediately
possess
an annuity
worth
at
least
387,000 ten
years
after his initial
purchase
in
2006.
12
80.
Using simple math, in light
of
the
initial investment
of
448,062.35,
the
annual
o
13
45,000
withdrawal
described
above, and
the
promised
performance
of the
annuity,
the
Lfl
3
14
value
of the
annuity
as of
April, 2014
should
have been
no
less than
404,163.51.
After
15
adjusting
for
the
two
withdrawals
after
the anniversary
date
see Exhibit
C,
page
2),
the
16
value
in
April
2014 was
only
137,857.70,
for
a
difference
of
266,305.81.
17
81.
Defendants
wrongfully interfered
with Plaintiffs
interest
in
the
above-
18
described
property
by
diverting from Plaintiff
the
identifiable
sum as
of
April
2014)
of
19
266,305.81
by
misappropriating
and
depositing
said
sums
into Defendants
own accounts,
20
and refusing
to
return
the
money to
Plaintiff.
21
82.
While
Defendants
originally
came
into
the
possession
of
the
converted
22
property when Plaintiff invested
as
described
above),
Defendants
have
improperly
retained
23
it
despite
demands
by
Plaintiff
for
return
of
the property.
24
83.
While
Plaintiff believes demand
for
return
of his converted
property
has
25
already
been
made, this Complaint
serves
as
a
further such
demand.
26
24. Each
Defendant
conspired
with each
of
the other
Defendants
to convert
the
27
above-listed
property,
so
that
the
activities
of
one
are
attributable
to
all.
28
-14-
COMPLAINT
EXHIBIT
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85. As
a
r
esu
lt of
D
efen
da
nts
acts o
f
c
on
vers
ion
,
P
lai
ntif
f
h
as
b
een
dam
ag
ed
in
2
the
su
m
or
sum
s
t
o
be
pr
ove
n
a
t
tha
i,
i
nc l
ud i
ng a
ll
com
pe
nsa
tory
dam
ag
es.
Pla
int
iff
is
3
f
ur th
er en
title
d
to
co
mp
ens
atio
n
fo r
the
tim
e
an
d
m
one
y
e
xpe
nde
d
in
pur
suit o
f
t
he
pr
ope
rty
.
4
TE
NT
H
U
SE OF
TI
ON
5
TR
EB
LE D
AM
AG
ES
F
or
V
iol
atio
n
of Ca
lifo
rni
a
Pen
al
Co
de
4
96
6
A
gai
ns t
All Def
end
an t
s)
7
86.
Pl
ain
tiff
r
e-a
lleg
es
a
nd
rei
nco
rpo
rate
s
ea
ch
a
nd
ev
ery alle
ga t
ion c
on
tain
ed
in
8
th
e
Gen
era
l
All
ega
tion
s an
d all
pret4rious
par
agr
aph
s of
all
pre
vio
us
sec
tio
ns
a
nd
C
aus
es of
9
Action
in
this Complaint , inclusive,
as
though
fully
set forth herein.
10
87.
D
efe
nd
ants
ca
use
d
Pla
int
iff to
tra
nsf
er
to D
ef
end
an t
s
at le
ast
2
66,
305
.81
11
b
elo
ng i
ng
t
o Pla
int
iff.
12
88.
D
efe
nd
ants
ha
ve reta
ine
d
the
en ti
re
2
66,3
05
.81
in
fun
ds
b
elo
ngi
ng
to
13
Pla
inti
ff.
14
89.
I
n
so
d
oin
g,
D
ef
end
ants h
ave
k
now
in
gly rec
eive
d
an
d
are de li
be r
atel
y
15
w
ith
ho l
ding
at
le
ast
266
,30
5.8
1
in
fun
ds
fro
m P
lai
ntif
f,
kn
ow
ing tha
t D
efe
nda
nts hav
e
no
16
r
igh
t,
ti
tle, o
r
in t
eres
t
in
th
e
f
und
s an
d
th
at s
aid
fu
nd
s
ha
ve bee
n
st
ole
n
fr
om Pl
aint
iff
an
dlo
r
17
o
btai
ned
i
n a
ma
nne
r
co
nsti
tuti
ng
the
ft.
18
90.
A
s a
dir
ec t
and
pro
xim
ate
resu
lt
ofD
efen
da
nts con
duc
t,
P
lai
ntif
f
has
19
s
us ta
ine
d
act
ua l
da
ma
ges
in the
am
ou
nt of no
t le
ss
th
an
266
,30
5.8
1.
2
0
91.
D
efen
dan
ts
con
du
ct
is in d
ire
ct
v
iol
atio
n
o
f
P
ena
l Co
de
4
96. As re
cen
tly
2
1
d
ete
rmi
ned by the cou
rt in B
ell
v
F
eib
ush
201
3)
21
2
C
al
.Ap
p.4
th
1
041
:
Pen
al Co
de
s
ecti
on
4
96
do
es
no
t
s
tate a
cr
im i
na l
c
onv
icti
on
und
er se
ctio
n
49
6a
)
is
re
qu i
red
f
or
a
pri
vat
e
pl
aint
iff to
re
cov
er
t
reb
le
dam
ag
es
un
der
23
sec
tion 49
6 c
). Nor
doe
s
s
ecti
on
496
c) lim
it rec
ove
ry
of
treb
le
d
ama
ge
s
to
a
crim e victim. Instead ,
section
496 c) permits
c{a]ny
person who has been
inju
red b
y
a
vio
lati
on
of su
bd
ivis
ion a or
b)
to
bri
ng
an act
ion
to rec
ove
r
t
reb
le
d
am
age
s.
25
6
I
d., 1045.
27
8
1/
OMPL INT
X
HI
IT
2
1
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UNDER
TH E SIXTH
CAUSE
Of
ACTION
2
18
for rescission
as
determined
according to
proof
at
time of
trial;
3
19
For
general damages
in an amount
according to
proof
at time
of trial;
4
20 Fo r
interest
in an
amount according
to proof
at
time
of
thai;
5
21 Fo r
attorneys
fees and
costs;
6
UNDER
TH E
SEVENTH
CAUSE
OF
ACTION
7
22
For
general
damages
in
an amount
according
to
proof
at
time
of
trial;
8
23 Fo r interest
in
an
amount
according
to proof
at
time
of
trial;
9
24
Fo r attorneys
fees and
costs;
10
UNDER
TH E
EIGWfH
CAUSE
OF
ACTION
25
for
restitution
in
an amount according to
proof
at
time of
trial;
12
26 for
interest
in an
amount
according
to
proof at
time
of
trial;
13
27
Fo r
attorneys
fees
and costs pursuant
to
California Code
ofProcedure
14
1021 5;
15
UNDERTHENIIJTHCAUSEOFACTION
16
28
For
damages
according to proof
at
time
of trial;
17
29
for
compensation
for the time
and
money
expended
in
pursuit
of
the property;
18
UNDER
THE
TENTH
CAUSE OF
ACTION
19
30
for
treble damages
in
an
amount
according to