BB-11-b-1
CHARLES R. GARRY,
GARRY, DREYFUS, MCTERNAN, BROTSKY,
HERNDON & PESONEN, INC.
1256 Market Street at Civic Center
San Francisco, California 94102
Telephone: 864 3131
Attorneys for Defendant
PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST,
a nonprofit corporation
SUPERIOR COURT OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
JAMES COBB, JR.,
Plaintiff,
vs.
PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST, a nonprofit corporation; JAMES WARREN JONES, also known as JIM JONES; TERESA BUFORD; JEAN F. BROWN; PAMELA G. MOTON; and FIRST DOE through FIFTIETH DOE, inclusive,
Defendants.
NO. 739 907
DEMURRER TO COMPLAINT AND POINTS AND AUTHORITIES IN SUPPORT THEREOF
[CCP § 430.10]
Date: October 2, 1978
Time: 9:30 A.M.
Dept: 9 Law and Motion
This demurrer is accompanied by a motion to strike.
Defendant Peoples Temple of the Disciples of Christ demurs to the complaint herein as follows:
FIRST CAUSE OF ACTION
1. The first cause of action does not state facts sufficient to state a cause of action in that the conduct for which plaintiff seeks damages is not outrageous.
2. The first cause of action is uncertain in that
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plaintiff alleges specific injuries in paragraphs 22-25 which apparently result only from the sending of a letter to him on March 14, 1978, as described in paragraphs 18-20. But in paragraph 12, lines 25-26, plaintiff alleges that he suffered great and emotional distress as a result of a telephone call allegedly made in April 1976. And in paragraph 20 plaintiff alleges that various, other acts which he alleges were done with intent to cause him great 8 emotional distress and fear, as described in paragraphs 8-16, induced an unspecified “state of mind of plaintiff.” It is unclear whether plaintiff intends to seek damages for all or some of these acts alleged in paragraphs 8-16 or merely from the sending of the letter alleged in paragraphs 18-20.
3. The first cause of action is uncertain in that in paragraph 5 plaintiff alleges that all of the defendants were the agents and employees of their codefendants and were acting within the course and scope of such agency and within the permission and consent of their codefendants in doing the things alleged in the complaint. But in paragraphs 13 and 14 defendant Moton is specifically excluded from the conspiracies alleged in those paragraphs. Furthermore, in paragraph 14 plaintiff alleges that tactics of terror and fraud were personal to defendant Jones prior to June 23, 1977. Presumably this refers to the acts alleged to have been ordered by defendant Jones in paragraphs 8-12. In paragraph 20, plaintiff alleges that all of the defendants, including defendant Moton, participated in sending the letter described in paragraph 18. In light of the allegations of paragraphs 13, 14 and 20, it
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is impossible to determine what is meant by the agency allegation of paragraph 5. It is also impossible to determine which defendants plaintiff alleges are liable for which acts.
4. The first cause of action is uncertain because the reference to “each of the acts complained of herein” in paragraph 8, line 22 is vague, ambiguous, and at best grossly over-inclusive. The complaint is 27 pages and 73 paragraphs long. Plaintiff could not conceivably have intended to allege that defendant Jones individually and personally ordered every single act described in the entire complaint. It is unclear which acts he does intend to include within that allegation.
5. The first cause of action is uncertain in that it is unclear from the allegations of paragraph 9 what, if anything, plaintiff alleges that defendant Jones had to do with the telephone calls described in paragraphs a-c of paragraph 9 and whether or not plaintiff alleges that defendant Jones personally made any of those 17 calls.
6. The first cause of action is uncertain because plaintiff has omitted from paragraph 11 all but six words of the alleged threat described in that paragraph, thus making it impossible to determine what was allegedly said to plaintiff at that time.
7. The first cause of action is uncertain in that it is not clear whether plaintiff intended the reference to “the tactics of terror and fraud which had been personal to defendant Jones” in paragraph 14 to refer to the acts alleged in the paragraphs of the complaint or to other and undescribed “tactics.”
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8. The first cause of action is uncertain in that it is not clear whether plaintiff intended the reference to the “conspiracy and agreement above alleged” in paragraph 15 to refer to the conspiracy alleged in paragraph 13 or that alleged in paragraph 14.
9. The first cause of action is uncertain in that it is unclear what, if anything, is the significance of paragraphs 16 and 17. Plaintiff does not allege that the acts described in those paragraphs caused him any emotional distress or contributed to the “state of mind” referred to in paragraph 20, line 19.
10. The first cause of action is uncertain in that paragraph 18 does not specify which defendants allegedly sent the letter described therein.
11. The first cause of action is uncertain because the reference in paragraph 20, line 19 to the plaintiff’s state of mind is unclear in that it does not indicate what that state of mind was.
12. The first cause of action is uncertain in that paragraph 21 does not specify to which defendants it refers. This is ambiguous since paragraph 20 refers to defendant Moton as having sent the letter, but paragraph 21 alleges that the acts described in paragraph 20 were done in furtherance of the conspiracies and agreements alleged in paragraphs 13-15, and defendant Moton was specifically excluded from the conspiracy and agreement allegations of those paragraphs.
13. The first cause of action is uncertain in that paragraph 23 does not specify which defendants are included
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in the allegations of willfulness, wantonness, malice and oppression.
SECOND CAUSE OF ACTION
14. The second cause of action does not state facts sufficient to constitute a cause of action in that the facts alleged do not constitute outrageous conduct by defendants or any of them.
15. The second cause of action is uncertain in that paragraph 26 incorporates all of the allegations of the first cause of action and is thus liable to all of the defects of uncertainty described in paragraphs 2-13 of this demurrer.
16. The second cause of action is uncertain in that in paragraph 5, incorporated into the second cause of action by paragraph 26, plaintiff alleges that all of the defendants were the agents and employees of their codefendants and were acting within the course and scope of such agency and with the permission and consent of their codefendants in doing the things alleged in the complaint. But in paragraph 29, lines 8-9, plaintiff specifically excludes defendant Moton from the conspiracies and agreements alleged in that paragraph. Paragraphs 27, line 13; 28, line 7; 32, line 18; 33, line 15; 35, line 22; 36, line 25; and 37, lines 5-6; all refer generally to “defendants.” In light of these allegations it is impossible to determine what is meant by the agency allegations of paragraph 5. It is also impossible to determine which defendants plaintiff alleges are liable for the acts alleged in the second cause of action.
17. The second cause of action is uncertain in that paragraph 27 does not specify which defendants allegedly published the open letter described in that paragraph.
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18. The second cause of action is uncertain in that paragraph 28 does not specify which defendants allegedly published the press release described in that paragraph.
19. The second cause of action is uncertain in that paragraph 32 does not specify which defendants published the letter and press release and had the intent described in that paragraph.
20. The second cause of action is uncertain in that paragraph 33 does not specify which defendants were acting in furtherance of any conspiracy or agreement, though defendant Moton had been specifically excluded from all the conspiracies and agreements alleged. Furthermore, paragraph 33 does not specify which acts and things alleged in this second cause of action were done pursuant to which previously alleged conspiracies and agreements.
21. The second cause of action is uncertain because the phrase “the aforementioned acts” in paragraphs 34, line 18; 35, line 22; 36, line 25; and 37, line 5 is ambiguous. It is impossible to determine from that phrase for which acts plaintiff intends to hold defendants liable in the second cause of action.
22. The second cause of action is uncertain in that paragraph 35 does not specify which defendants allegedly acted willfully, wantonly, oppressively and with malice.
THIRD CAUSE OF ACTION
23. The third cause of action is uncertain in that paragraph 38 incorporates all of the allegations of the first and second causes of action and is thus liable to all of the defects of uncertainty described in paragraphs 2-13 and 16-22 of this
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24. The third cause of action is uncertain in that in paragraph 5, incorporated into the third cause of action by paragraph 38, plaintiff alleges that all of the defendants were the agents and employees of their codefendants and were acting within the course and scope of such agency and with the permission and consent of their codefendants in doing the things alleged in the complaint. But in paragraph 39, lines 16-17, plaintiff specifically excludes defendant Moton from the conspiracies and agreements alleged in that paragraph. Paragraphs 41, line 10; 43, line 9; and 50 lines 6-7; all refer generally to “defendants.” In light of these allegations it is impossible to determine what is meant by the agency allegations of paragraph 5. It is also impossible to determine which defendants plaintiff alleges are liable for the acts alleged in the third cause of action.
25. The third cause of action is uncertain in that paragraph 41, line 10, does not specify which defendants allegedly published the open letter described in that paragraph.
26. The third cause of action is uncertain in that paragraph 43 does not specify which defendants were acting in furtherance of any conspiracy or agreement, though defendant Moton had been specifically excluded from all the conspiracies and agreements alleged. Furthermore, paragraph 43 does not specify which acts and things alleged in this third cause of action were done pursuant to which previously alleged conspiracies and agreements.
27. The third cause of action is uncertain in that
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paragraph 50 does not indicate which defendants allegedly had feelings of hatred and ill will and acted with a desire to oppress plaintiff.
FOURTH CAUSE OF ACTION
28. The fourth cause of action is uncertain in that paragraph 51 incorporates all of the allegations of the first, second, and third causes of action and is thus liable to all of the defects of uncertainty described in paragraphs 2-13, 16-22, and 24-27 of this demurrer.
29. The fourth cause of action is uncertain in that in paragraph 5, incorporated into the fourth cause of action by paragraph 51, plaintiff alleges that all of the defendants were the agents and employees of their codefendants and were acting within the course and scope of such agency and with the permission and consent of their codefendants in doing the things alleged in the complaint. In paragraph 53 plaintiff alleges that defendant Jones’ voice was heard by “all other named defendants and by FIRST DOE through TENTH DOE,” and that these defendants acted upon his order pursuant to the conspiracies and agreements alleged above. But paragraphs 13, 14, 29 and 39 specifically excluded defendant Moton from those conspiracies. In paragraphs 52, line 17; and 54, line 1 plaintiff refers to “defendants” generally. In light of all of these allegations it is impossible to determine what is meant by the agency allegations of paragraph 5. It is also impossible to determine which defendants plaintiff alleges are liable for the acts alleged in the fourth cause of action.
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FIFTH CAUSE OF ACTION
30. The fifth cause of action is uncertain in that paragraph 62 incorporates the allegations of the first, second, third and fourth causes of action and is thus liable to all of the defects of uncertainty described in paragraphs 2-13; 16-22; 24-27 and 29 of this demurrer.
31. The fifth cause of action is uncertain in that in paragraph 5, incorporated into the fifth cause of action by paragraph 62, plaintiff alleges that all of the defendants were the agents and employees of their codefendants and were acting within the course and scope of such agency and with the permission and consent of their codefendants in doing the things alleged in the 13 complaint. In paragraph 65 plaintiff alleges that “defendants did the acts and things herein alleged pursuant to, and in furtherance of, the conspiracies and agreements above alleged, including that alleged in paragraph 39 herein.” But paragraphs 13, 14, 29 and 39 specifically excluded defendant Moton from those conspiracies. In paragraphs 63, line 18; 65, line 25; and 73, lines 7-8 plaintiff refers generally to “defendants.” In light of all of these allegations it is impossible to determine what is meant by the agency allegations of paragraph 5. It is also impossible to determine which defendants plaintiff alleges are liable for the acts alleged in the fifth cause of action. WHEREFORE, defendant Peoples Temple of the Disciples of
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Christ prays that this demurrer be sustained and for all other proper relief.
Dated: September 18, 1978
GARRY, DREYFUS, McTERNAN, BROTSKY, HERNDON & PESONEN, INC.
By /s/ Charles R. Garry
Charles R. Garry
Attorneys for Defendants