Pleadings

DAVID MARTEL, Self-Represented
4001 South Main
Los Angeles, CA 90037
(310) 944-2055

Defendant, In Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT

Cross-complainant alleges:

1. Cross-complainant DAVID MARTEL is, and at all times mentioned in this complaint was, a resident of Los Angeles County, California.
2. At all times herein plaintiff/cross-defendant WEMBLY INTERNATIONAL, INC. was a business entity doing business in Los Angeles County, California.
3. On December 9, 2009, plaintiff WEMBLY INTERNTIONAL, INC. filed a complaint in the above-entitled action alleging that defendant/cross-complainant breached a contract entered into with plaintiff by failing to fully pay for T-shirts under oral contract.
4. Cross-complainant alleges that the T-shirts delivered by plaintiff/cross-defendant WEMBLY were defective, irregular, contained the wrong sizes and otherwise unmerchantible, and therefore plaintiff/cross-defendant WEMBLY is liable to defendant/cross-complainant for supplying the goods in such defective condition in breach of a contract, is more fully set forth in this cross-complaint.
5. Cross-complainant is MARTEL, and at all times mentioned in this cross-complaint was, engaged in the business of supplying T-shirts to retail merchants for resale to the public. As a part of that business, cross-complainant has entered into a number of contracts with various retail merchants, including plaintiff/cross-defendant, by which cross-complainant has agreed to supply various quantities of T-shirts to those merchants. In order to meet its obligations under those contracts, cross-complainant contracts with manufacturers and other suppliers of T-shirts, including cross-defendant, for the wholesale purchase of T-shirts.
6. Cross-defendant WEMBLY is, and at all times mentioned in this cross-complaint was, engaged in the business of manufacturing and distributing T-shirts for resale to wholesale suppliers, including cross-complainant.
7. On or about April 2009, cross-complainant and cross-defendant entered into an oral contract by which cross-defendant agreed to sell to cross-complainant, and cross-complainant agreed to purchase, 4,604 dozen T-shirts for the sum of $59,960.  On April 13, 2009 cross-complainants paid cross-defendants $59,960 by letter of credit and cash.
8. At a later date, plaintiff/cross-defendant and defendant/cross-complainant made a second oral contract for T-shirts in the amount of $41,288.
9. Under the second oral contract described above, cross-defendant promised to deliver to cross-complainant a second order of T-shirts of merchantable quality, in a regular assortment of sizes, suitable for resale to retail merchants.

10. On April 13, 2009 cross-defendant shipped the first T-shirts to cross-complainant at cross-complainant’s place of business located in Los Angeles County, California.

11. Immediately after taking delivery of the first contract on May 25, 2009, cross-complainant’s buyer Chong’s Trading Company, Inc., in San Leandro, California, made a reasonable inspection of the T-shirts and determined that the T-shirts were unmerchantible in condition, because they were irregular in size, assortment, style & color, contained the wrong sizes and had other defective conditions.  EXHIBIT “A”.

12. Cross-complainant therefore stopped payment on the two personal checks totaling $41,288 for the second contract of T-shirts, which was never shipped by cross-defendant.

13. Plaintiff’s complaint is incorrect and misleading in that that complaint does not mention the two different contracts and two different shipments.

14. Although given the opportunity to do so as set forth above, cross-defendant refused to deliver any replacement T-shirts to cross-complainant.

15. As a direct and proximate result of cross-defendant’s breach of contract as set forth above, cross-complainant was unable to deliver any merchantable T-shirts to Chong’s Trading Company, Inc.

16. As a direct and proximate result of cross-defendant’s breach of contract as set forth above, cross-complainant MARTEL has incurred and will continue to incur warehouse storage, shipping and handling fees and costs for the unmerchantible T-shirts.

17. Also as a direct and proximate result of cross-defendants breach of contract as set forth above, cross-complainant’s business reputation, good name and standing in the Korean business community have been damaged in an amount to be ascertained at trial.

18. As a further direct and proximate result of cross-defendant’s breach of contract, cross-complainant is seeking damages in the sum of $75,000 for cross-defendants breach of contract.

FIRST CAUSE OF ACTION
Breach of Contract

19.  Cross-Complainant restates paragraphs 1 through 18 as though full set forth herein.

20. Cross-Defendant WEMBLY breached the oral contract by not providing merchantable goods to Cross-ComplainantMARTELas agreed upon.
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SECOND CAUSE OF ACTION
Breach of Implied Warranty

21. Cross-Complainant hereby restates all preceding paragraphs as though fully set forth herein.

22. Cross-Defendant WEMBLY breached the covenant of Implied Warranty by not providing merchantable goods to Cross-Complainant MARTEL.
THIRD CAUSE OF ACTION
Fraud

23.  Cross-Complainant hereby restates all preceding paragraphs as though fully set forth herein.

24. Cross-Defendant intentionally made false representations to Cross-Complainant that merchantable T-shirts in an assortment of regular sizes would be delivered.  Cross-Defendant knew these representations to false when they were made to Cross-Complainant.  Cross-Complainant relied on these false representations and had no way of knowing them to be false, and acted in reliance thereon, to his detriment, causing monetary and non-monetary damages to himself.

25. Cross-Defendant WEMBLY breached the oral contract by not providing merchantable goods to Cross-Complainant MARTEL.
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FOURTH CAUSE OF ACTION
Negligence

26. Cross-Complainant hereby restates all preceding paragraphs as though fully set forth herein.

27. Cross-Defendant negligently made representations to Cross-Complainant that merchantable T-shirts in an assortment of regular sizes would be delivered.  Cross-Complainant relied on these negligent representations and acted in reliance thereon, to his detriment, causing monetary and non-monetary damaged to himself.

WHEREFORE, cross-complainant demands judgment against cross-defendant as follows:

1. Damages in the sum of $75,000, or any other amount cross-defendant may be held liable for on cross-complainant’s claim;

2.  Costs of suit;

3.  Reasonable attorneys fees, paralegal fees and legal document assistant fees, and

4. Any other and further relief that the court considers
proper.

Dated:  January 29, 2009                                Respectfully submitted,

_______________

DAVID MARTEL,

Defendant/Cross-complainant

In Pro Per