1 CRAIG M.

LYTLE
Attorney at Law 84430
2 15028 Prairie Avenue
Hawthorne, California 90250
3 Attorney for Plaintiff
Dewayne Abernathy
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7 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES
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DEWAYNE ABERNATHY, Case No.
10 Plaintiff,
Vs. Complaint for Partnership Dissolution,
Accounting, Receiver, Injunction,
11 DAVID A. FISHER AND DOES 1-10 Breach of\Fiduciary Duty, Partnership,
Defendant. Etc.
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Plaintiff complains and alleges as follows:

15 GENERAL ALLEGATIONS

16 APPLICABLE TO ALL CAUSES OF ACTION

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1. At all times herein mentioned, Plaintiff was and now is a resident of Los Angeles County,
18 California.
2. At all times herein mentioned, Defendant David A. Fisher was and now is a resident of
19 Los Angeles County, California.
3. Plaintiff is ignorant of the true names and capacities of Defendant sued herein as DOES 1
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through 10, inclusive, and therefore sues these Defendant by such fictitious names. Plaintiff will
21 amend this Complaint to allege their true names and capacities when ascertained and believes and
thereon alleges that each of the fictitiously named Defendant is responsible in some manner for
22 the occurrences herein alleged and that Plaintiff's damages as herein alleged were proximately
caused by such occurrences.
23 4. At all times herein mentioned, Defendant, and each of them, were acting as the agents,
principals, employees of - or in concert or conspiracy with - their co-Defendant and were acting
24 within the course and scope of their employment, authority, agency or conspiracy and each
Defendant, by word or conduct, approved, allowed or ratified the acts or omissions to act of
25 each of their co-Defendant.
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27 Complaint for Partnership Dissolution, etc.

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 5. Plaintiff Dewayne Abernathy and Defendant David Fisher purchased Naka’s Broiler on El
1 Segundo Blvd in Compton CA from Banks in October 1991 and the underlying real property located
at 1961 El Segundo Blvd. The parties purchased the real property and the restaurant as a joint
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venture. The price for the restaurant and the real property was 127,000 allocated aproximately
90,000 for the real property and 37,000 for the restaurant. The restaurant had been in business for
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over 40 years, but wasn't very successful at the time. When the parties took over the restaurant,
4 Dewayne worked at the restaurant for the next 10 years slowly increasing the business to the point
where business became somewhat profitable. During that 10 years, David spent little or no time
5 working on the restaurant. In 2001, Dewayne became aware that David had failed to utilize money
that he was responsible for to pay the board of equalization, and that he did not pay. Dewayne also
6 became aware that David may have been guilty of some other dishonesty and did not wish to ruin his
good name and stopped working in the restaurant and offered to sell his interest in the business to
7 David for the sum of 65,000. David never accepted the offer for 65,000 for Dewayne's interest in the
restaurant, but instead made a counteroffer of 40,000 which Dewayne has never accepted. Dewayne
8 is informed and believes and thereon alleges that the restaurant has been profitable since 2001. David
has failed to make any accounting whatsoever to Dewayne of the income and expense or the profit of
9 the restaurant nor shared any of the profits earned by the partnership. BANKRUPTCY
10 4. A prior action between thg parties for partition of the real property and other claims resulted in a
judgment which, inter alia , provided for sale of the real property by a referee; however, the property
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has been difficult to sell particularly in view of the economy and the only offer would result in a loss
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of all the value of the business. See judgment attached hereto.

13 5.The only way to get a fair offer for the real property and to end all disputes between the parties is
to dissolve the partnership and sell it.
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FIRST CAUSE OF ACTION
15 (Dissolution of Partnership)
AGAINST DEFENDANT
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6. In or about 1991 at Compton, California Plaintiff and defendant entered into an oral contract
17 whereby they agreed to purchase a restaurant and real property and operate the restaurant for a profit.
7. Plaintiff has performed all terms and conditions of said Contract not excused by defendant's
18 breach.
8. On or about January 2002 and thereafter Defendant breached said contract by failing to
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account for expenses and income or pay over any profits to Plaintiff.
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9. As a proximate result of said breach of said contract Plaintiff has been generally damaged in
an unknown amount.
21 10. As a proximate result of said breach Plaintiff has been further specially damaged in an
unknown amount.
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14. Numerous acts and courses of conduct by defendant(s) or other facts warranting dissolution
23 under Corp. Code § 15032, e.g., Since thecommencement of the partnership, disagreements and
disputes have arisen between plaintiff and defendant _________ (name ) regarding matters of policy
24 in the operation of the partnership business.

25 Defendant has on several occasions appropriated sums of MONEY from partnership funds to his/her
own use, without plaintiff's knowledge,
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 approval, or consent. Feelings between plaintiff and defendant have become bitter and antagonistic].
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5. Plaintiff is entitled to dissolution of the partnership by court decree, pursuant to Subdivision(s) (c),
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(d), and (f)] of Section 15032 of the Corporations Code, in that ., Defendant's conduct has
prejudicially affected the carrying on of the partnership business, and it has become impossible to
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carry on the business to plaintiff's and defendant's mutual advantage]. [Defendant has refused to
4 consent to a dissolution of the partnership.]

5 6. Defendant is in possession of the partnership books, assets, and accounts. The amount of
partnership assets and liabilities is unknown to plaintiff and cannot be ascertained without an
6 accounting of profits and losses that occurred during the operation of the partnership business.

7 7. The partnership agreement provides that are to be divided between plaintiff and defendant equally.
8. Plaintiff has demanded an accounting but defendant (has or have) failed and refused, and
8 continue(s) to refuse to settle accounts and divide partnership assets and liabilities with plaintiff.
9 9. Unless a receiver is appointed by the court to take possession of, care for, manage, and operate the
partnership assets and property, such property and assets are in danger of being lost, removed, or
10 materially destroyed, in that defendant is in control of the partnership business, and was and is
applying partnership funds to his/her own use, in excess of his/her interest in the partnership
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business)].
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13 SECOND CAUSE OF ACTION

(Breach of Fiduciary Duty)
14 AGAINST ALL DEFENDANTS

15 11. In addition to the general allegations Plaintiff refers to the allegations of the first cause of
action and makes them a part hereof.
16 12. Defendant had a fiduciary duty to Plaintiff by reason of their joint ownership and agreement.
13. Defendant breached that duty by deliberately refusing to account to Plaintiff or distributing
17 any profits to petitioner.
14. As a proximate result of said breach of said contract Plaintiff has been generally damaged in
18 an unknown amount.
15. As a proximate result of said breach Plaintiff has been further specially damaged in an
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unknown amount.
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16. By reason of Defendant's breach of fiduciary duty which was only motivated solely by has
quest for profit without regard for petitioner's economic or emotional well-being, Plaintiff are
21 entitled to exemplary punitive damages in the sum of $50,000.

22 THIRD CAUSE OF ACTION

(Wrongful Exclusion of Partner & Accounting)
23 AGAINST ALL DEFENDANTS

24 17. In addition to the general allegations Plaintiff refers to the allegations of the first and second
cause(s) of action and makes them a part hereof.
25 18. Plaintiff and defendant are now, and for a period of have been, partners or joint venturers
engaged in the business in Compton, California, of operating Naka's Broiler restaurant.
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 19. On or about 2002, Defendant David Fisher assumed sole posession and control of the
1 business and assets of the partnership and thereafter operated and conducted the same to the
exclusion of Plaintiff and without making any accounting to Plaintiff of the income or
2
disbursements, or of the net profits or losses realized by the partnership.
20. The partnership or joint venture has never been dissolved and no accounting has been made
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of the partnership business to Plaintiff and defendant has failed, refused, and neglected to make the
4 same and continues to fail, refuse, and neglect to do so.
21. As a proximate result of said breach of said contract Plaintiff has been generally damaged in
5 an unknown amount.
22. As a proximate result of said breach Plaintiff has been further specially damaged in an
6 unknown amount.

7 FOURTH CAUSE OF ACTION

(Indebtitatus Assumpsit)
8 AGAINST ALL DEFENDANTS
9 23. On or about May 1, 2007 Defendants were indebted to Plaintiff in the sum of $100,000.
24. At said time and place, the Defendants undertook and promised Plaintiff to pay said sum
10 upon request.
25. Although requested so to do, Defendants has failed to pay said sum except for the sum of
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none and there is now due, owing and unpaid from Defendants to Plaintiff the sum of $100,000 with
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interest thereon.

13 WHEREFORE, plaintiff prays judgment against defendant(s) (and each of

them) as follows:
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1. For an order that the partnership be dissolved;
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2. For an accounting of partnership affairs from January 2002 to the present, that the account be
16 settled between plaintiff and defendant(s), and that plaintiff have judgment against defendant(s) for
such sums as may be found due and owing to plaintiff under such
17 accounting;
18 3. For the appointment of a receiver to take over management and control of partnership property
and assets, to wind up partnership affairs, to control partnership business until winding up is
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completed, and to keep partnership assets until their division between
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the partners;]

21 4. For costs of suit herein incurred; and

22 5. For such other and further relief as the court may deem proper.

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Dated: June 20, 2007
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25 ______________________________
CRAIG M. LYTLE
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