[Editor's Note: Actress Susan Anspach lived with Jack Nicholson and gave birth to his child while filming "Five Easy Pieces" in 1969-1970. In a suit filed on August 26 against Nicholson and his business manager, Anspach alleges that the actor reneged on verbal agreements to provide loans to cover mortgage payments on her home.]
LAW OFFICES OF PAUL L. HOFFMAN
By: PAUL L. HOFFMAN, CSB # 71244
GARY L. BOSTWICK, CSB # 79000
LORI J. BECKWITH, CSB # 179345
100 Wilshire Boulevard, Suite 1000
Santa Monica, California 90401
Telephone: (310) 260-9585<p>
Attorneys for Plaintiff
SUSAN ANSPACH<p>
SUPERIOR COURT OF THE STATE OF CALIFORNIA <p>
FOR THE COUNTY OF LOS ANGELES<p>
WEST DISTRICT<p>
SUSAN ANSPACH,<p>
Plaintiff,<p>
vs.<p>
JACK NICHOLSON, an individual;
PROTEUS FILMS, INC., MONEY
PURCHASE PENSION PLAN; a
California Corporation; and
ROBERT COLBERT, an individual,
Defendants.<p>
CASE NO. SC 039121<p>
FIRST AMENDED COMPLAINT FOR<p>
(1) FRAUD;
(2) BREACH OF CONTRACT;
(3) PROMISSORY ESTOPPEL;
(4) RESCISSION;
(5) INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS;
(6) NEGLIGENT INFLICTION
OF EMOTIONAL DISTRESS;
and
(7) DECLARATORY RELIEF<p>
Plaintiff SUSAN ANSPACH alleges as follows: <p>
PARTIES<p>
1. Plaintiff SUSAN ANSPACH ("ANSPACH") is an individual residing in the County of Los Angeles. She currently resides at 473 Sixteenth Street ("the Property") in Santa Monica, California. She is the owner of this property and has been the owner of the Property since 1979. <p>
2. Defendant JACK NICHOLSON ("NICHOLSON"), is a resident of the County of Los Angeles. He is an actor. <p>
3. PROTEUS FILMS, INC., MONEY PURCHASE PENSION PLAN, ("PROTEUS") is a corporation duly organized and entitled to do business in the State of California. PROTEUS is the pension fund organized under PROTEUS and maintained by defendant NICHOLSON. PROTEUS funds were used by defendants NICHOLSON and COLBERT to fund the personal "loans" to plaintiff ANSPACH as described in this complaint. <p>
4. Defendant ROBERT COLBERT ("COLBERT"), was at all times relevant hereto business manager and agent for Defendant NICHOLSON. COLBERT acted as NICHOLSON's agent in all his dealings with ANSPACH as alleged in this complaint. Defendant COLBERT was at all times relevant hereto responsible for the management and disbursal of funds for PROTEUS and for NICHOLSON. NICHOLSON told ANSPACH that COLBERT possessed authority to act on his behalf on financial matters, including the matters alleged in this complaint, and that ANSPACH was to deal only with COLBERT on such matters. He is a resident of the County of Los Angeles. <p>
FACTS COMMON TO ALL CLAIMS<p>
5. In December 1969 plaintiff ANSPACH and defendant NICHOLSON had a romantic affair during the filming of the critically-acclaimed film Five Easy Pieces in Vancouver, British Columbia. During this affair ANSPACH and NICHOLSON conceived a son, Caleb, who was born on September 26, 1970, at or around the time of the premier of Five Easy Pieces in New York. In or about early 1970, NICHOLSON called ANSPACH requesting that they speak about her pregnancy. ANSPACH did not meet with him because Mark Goddard, who became her husband in June 1970, was upset that ANSPACH was pregnant with NICHOLSON's child and did not want her to see NICHOLSON. <p>
6. NICHOLSON has expressed and has long held a personal animosity toward ANSPACH over her ending the relationship and her failure to involve NICHOLSON in Caleb's early childhood years. ANSPACH was unaware of this deeply felt hostility until very recently. NICHOLSON's animosity toward ANSPACH is the primary reason why NICHOLSON has acted as alleged in this complaint to impose enormous psychological suffering and emotional distress on ANSPACH. In addition, NICHOLSON has acted as alleged in this complaint to control ANSPACH from discussing the details of their relationship and of his relationship to Caleb in the media. <p>
7. During ANSPACH's divorce proceedings in 1977, NICHOLSON and ANSPACH discussed for the first time NICHOLSON's assumption of a fatherly role in their son Caleb's life. NICHOLSON assured ANSPACH that he would assume a fatherly role toward Caleb as soon as he felt ready to handle it. He took no action to do so at that time. <p>
8. In 1979 ANSPACH purchased her home at 473 16th Street, Santa Monica, California. Caleb grew up in this home, and still thinks of it as his family home and returns to the home on visits. He continues to store most of his personal belongings and his car at the home. ANSPACH sought no assistance from NICHOLSON for the purchase of this home and did not ask NICHOLSON for any financial assistance for Caleb or herself until Caleb went to college in 1988. ANSPACH had a successful acting career and was able to support herself and her family. <p>
9. By approximately the summer of 1988, ANSPACH began to have financial difficulties and realized that she might be forced to sell the home. When ANSPACH and Caleb discussed the difficulties of maintaining the house, Caleb told ANSPACH that he did not want to lose the home because it had been their family anchor. When ANSPACH asked for money in 1988, she told NICHOLSON and COLBERT that the purpose of NICHOLSON's help was to fulfill his son's wish of keeping the family home. ANSPACH told COLBERT of her emotionally vulnerable state due to the break up of her marriage to Sherwood Ball, her kids going away to college, and the faltering of her acting career. <p>
10. ANSPACH's vulnerable financial and emotional condition provided NICHOLSON an opportunity to control her life through his "assistance," and ultimately to exact revenge for being hurt by ANSPACH. Starting in 1988, NICHOLSON provided plaintiff ANSPACH with direct financial assistance by a number of $10,000 loans. When ANSPACH asked NICHOLSON for money, NICHOLSON told ANSPACH he would be happy to help her out, and forcefully told her that any money dealings were to be handled only through COLBERT. ANSPACH signed one promissory note for one of these loans in the amount of $10,000 at 10% interest, which stated no due date for repayment. COLBERT told ANSPACH to sign this promissory note for tax purposes. COLBERT, acting as NICHOLSON's agent, agreed that these loans would only be repaid if ANSPACH's career became financially successful again. Between 1988 and 1991, NICHOLSON gave ANSPACH a total of approximately one hundred twenty thousand dollars ($120,000.00), under the same conditions. These payments to ANSPACH were made in increments of ten thousand dollars ($10,000.00) each. Except for the one promissory note for $10,000, ANSPACH was not asked to sign promissory notes for any of these loans. In May of 1992, ANSPACH repaid NICHOLSON $20,000 because she was in a position to do so. On information and belief, the remainder of these "loans" were to have been written off by defendant NICHOLSON as "bad debts," presumably for the tax benefits they provide to NICHOLSON. Consistent with the agreement between ANSPACH and NICHOLSON, until ANSPACH filed her first complaint on October 30, 1995, NICHOLSON and COLBERT had never attempted to collect these amounts and had never indicated that these "loans" had to be repaid. In December 1995, after plaintiff filed suit, NICHOLSON sent her a demand for repayment of alleged "loans" in excess of $200,000. <p>
DEFENDANTS' CONSPIRACY TO CONTROL ANSPACH <p>
11. NICHOLSON intended to control ANSPACH and cause her to suffer for the anger NICHOLSON felt toward her. COLBERT was aware of NICHOLSON's animosity toward ANSPACH and aided NICHOLSON in controlling and manipulating her starting in 1989 through "loan" documents which created on paper a second trust against her house and enabled defendants to hold a "sword of Damocles" over ANSPACH'S head from 1989 to the present. NICHOLSON and COLBERT engaged in a conspiracy to control ANSPACH's ability to speak publicly about NICHOLSON and his relationship to Caleb; to humiliate ANSPACH and impose suffering on her and repay her for the hurt NICHOLSON suffered by her actions in 1970. NICHOLSON and COLBERT used the control acquired over ANSPACH through the "loans" to influence her against speaking publicly about NICHOLSON's fatherhood of Caleb and to inflict emotional distress upon her through NICHOLSON's verbal abuse and COLBERT's inappropriate sexual advances. <p>
THE 1989 PROMISES<p>
12. In approximately September or October of 1988, after defendant NICHOLSON began paying for Caleb's college tuition and expenses at Georgetown University, plaintiff ANSPACH requested assistance from NICHOLSON in order to maintain Caleb's family home in Santa Monica. ANSPACH followed NICHOLSON's wishes that she not deal with him concerning money matters and made her request for assistance to COLBERT. Defendant NICHOLSON, through defendants COLBERT and PROTEUS, "loaned" plaintiff ANSPACH $205,000. The entire basis of this agreement, as discussed between Anspach and Colbert, was that ANSPACH would repay the amounts loaned to her as soon as her career rebounded and she could afford to do so. The parties recognized that this could happen at any time. Though plaintiff ANSPACH requested that defendant NICHOLSON simply pay off the first trust deed, defendant COLBERT insisted that the "loan" be handled in the same manner as the smaller $10,000 loans. Plaintiff ANSPACH was asked to sign a promissory note indicating on paper that the $205,000 plus 10 1/2 % interest would be "duet" in a balloon payment in 1994. The note was secured on paper by a second trust deed on plaintiff's home. This interest rate was much too high for a genuine transaction but ANSPACH was told by COLBERT that it didn't matter and that she shouldn't worry about the formal arrangements. Defendant COLBERT explained that structuring the "loan" this way would look good on paper because the money would appear to be earning 10 1/2 % interest instead of the 3% to 5% it would earn anywhere else. Defendant COLBERT knew of NICHOLSON's desire to obtain control over ANSPACH and COLBERT aided in NICHOLSON's plan to carry out his desires by promising ANSPACH on several occasions that they would never cause her to lose her home. <p>
13. ANSPACH was apprehensive and nervous about signing the "loan" papers notwithstanding COLBERT's representations. Though ANSPACH tried to abide by NICHOLSON's request that she not bring up money with him, she felt such anxiety about signing these papers that ANSPACH called defendant NICHOLSON directly to express her fears and ask why the "loan" had to be tied on paper to her house, given the fact that she wouldn't have to repay the loans until her career rebounded. ANSPACH had made it clear to NICHOLSON that she was seeking financial assistance until her career rebounded to maintain the family home for Caleb even though she could have sold the home and made more than $1 million profit at that time. ANSPACH asked defendant NICHOLSON why she was being required to sign documents that, at least on paper, could put her home in jeopardy and told NICHOLSON that she was insecure about signing the documents COLBERT wanted her to sign, even though they might assist NICHOLSON. Defendant NICHOLSON told ANSPACH to do what COLBERT said. ANSPACH asked again why she needed to sign the second trust deed, and NICHOLSON told her not to worry. Defendant NICHOLSON promised "I am a compassionate and empathetic person, I will never abandon you, but I leave money matters up to Mr. C. I don't walk out on people." ANSPACH asked, "Are you going to walk out on me?" NICHOLSON responded "I'm not going to walk out on you. I'm not going to abandon you." NICHOLSON promised ANSPACH that if she could not repay the "loan," she would not lose her home. All of these representations were false when they were made. <p>
14. By structuring the "loan" transaction in the way they did, defendants trapped ANSPACH into a financial treadmill from which she could not escape. Defendants did not give her enough money to pay off the first trust deed and the interest charges on defendants' second trust deed accrued at an exorbitant rate. Defendants knew that once ANSPACH accepted their "assistance" in 1989 they had complete control over her and could force her to lose her home at any time by enforcing the "loan" documents they made her sign based on false representations and reassurances that they would not allow her to lose her home. <p>
15. From the time ANSPACH was asked to sign these "loan" papers until the present, ANSPACH has been told by NICHOLSON that he would give her the financial help she needed and to maintain the home and to do what COLBERT said. COLBERT, in contrast, told her that the reason NICHOLSON was not paying off the first trust deed entirely was that he wasn't ready to do so yet. ANSPACH told defendants that she did not understand why NICHOLSON did not just pay off her first trust deed for approximately $390,000, instead of adding a second trust deed to the house. Aware of NICHOLSON's plan to maintain control over ANSPACH, defendant COLBERT strung ANSPACH along by telling her that he was sure that defendant NICHOLSON would "come to his senses" and eventually do the right thing and buy the house for Caleb. In this way, COLBERT lulled ANSPACH into a trap devised by defendants NICHOLSON and COLBERT to control and humiliate her. There was never any discussion between the parties that plaintiff ANSPACH would be obligated to repay the "loan" or that defendants could or would foreclose on her family home if she lacked the resources to pay the "loan". Such actions are completely at odds with the entire basis of the agreement in 1989 and after. Defendants led ANSPACH to believe that they concurred with her that the underlying reason for the entire arrangement was to keep the family home of NICHOLSON's son. In fact, COLBERT assured ANSPACH that she had nothing to worry about in signing the papers. Though ANSPACH always intended to repay NICHOLSON, it was understood by the parties that defendants would never force her to sell the house to repay these "loans" to defendants if her career had not rebounded. In part, this was based on the parties' knowledge that defendant NICHOLSON is worth more than $150 million and has purchased homes for his other children, including a home he purchased, in or about 1990, for $2.475 million for his daughter Jennifer directly across the street from the Property. Plaintiff had no reason to believe that NICHOLSON would foreclose on their family home if she was unable to make the balloon payments described in the documents she signed. <p>
16. Based on these promises plaintiff ANSPACH did not sell the family home in 1989 even though the house was worth nearly $1.5 million in 1989 and had less than $400,000 in encumbrances at that time. She relied on the representations made by NICHOLSON and COLBERT in attempting to hold on to the house, as Caleb wished her to do. Had plaintiff ANSPACH known of defendants" scheme to control her or that they would renege on their promises, she would not have assumed the additional "debt" and would have sold the house at a substantial profit of approximately $1 million in 1989. <p>
17. Approximately one year after NICHOLSON made his first promises to ANSPACH, ANSPACH and NICHOLSON had another telephone conversation where ANSPACH expressed her anxiety about the "loan" and losing her house. ANSPACH was anxious because in the year after the first "loan" was made to ANSPACH, COLBERT had attempted to use the situation to make inappropriate romantic advances toward ANSPACH. These inappropriate overtures by COLBERT caused ANSPACH's level of discomfort to increase. During this telephone conversation however, NICHOLSON again reassured ANSPACH that she had nothing to worry about and she would not lose her home. NICHOLSON reminded ANSPACH that COLBERT was on her side, that she was a friend, and that NICHOLSON was not ever going to take her home away from her. <p>
18. During 1989, COLBERT made advances toward ANSPACH approximately twice when she went to his office to pick up Georgetown tuition checks. COLBERT made ANSPACH feel trapped and uncomfortable. ANSPACH had to deal with COLBERT because NICHOLSON made it clear she had to deal with COLBERT on all issues relating to money. ANSPACH was forced to see him periodically to conduct her financial dealings with NICHOLSON, despite COLBERT's inappropriate behavior because NICHOLSON had instructed her that COLBERT was acting for him in these matters. This was part of defendants' plan to humiliate ANSPACH and cause her to suffer. <p>
THE 1992 PROMISES<p>
19. In March 1992 plaintiff ANSPACH's career wag still in difficulty and she was in no position to maintain the house without further assistance. Defendants arranged to supply plaintiff ANSPACH with another $200,000 using Proteus as the source of funds for this personal "loan" to ANSPACH. In form defendant PROTEUS "loaned" plaintiff ANSPACH $476,000; however, $276,000 was used to "pay off" the 1989 loan plus accumulated interest. This "loan" was also secured on paper by a second trust deed on plaintiff's home. <p>
20. When the new $200,000 was given to ANSPACH in 1992, NICHOLSON and COLBERT again convinced her through fraudulent representations, to sign documents which would make NICHOLSON's financial assistance to ANSPACH and their son appear as a loan for tax purposes. ANSPACH again told NICHOLSON and COLBERT that she never wanted to lose the house due to its importance as a family anchor for Caleb. NICHOLSON and COLBERT again reassured her that the forms were for business purposes and that she would never be abandoned. ANSPACH was led by defendants to believe that they would never take her family home away from her and that they would continue to assist her until her career rebounded and she could maintain the house and begin to repay the "loans." These representations were false when they were made. <p>
21. Based on defendants promises that ANSPACH would not lose her house by signing the new "loan" documents, ANSPACH signed "loan" documents again in 1992 as requested by COLBERT. ANSPACH relied on defendants' representations and did not sell her home in 1992 at a substantial profit. <p>
THE SEPTEMBER 1994 PROMISE<p>
22. In August 1993, ANSPACH obtained tenants for her home because she could not make the first trust deed payments on her own. By having tenants she could hold on to the house indefinitely until her career rebounded and she could meet these payments and repay NICHOLSON. In September 1994 plaintiff ANSPACH arranged for a meeting with defendant COLBERT in order to discuss the fact that her tenants were leaving in October and what to do about this. At this point plaintiff had to decide whether to arrange to get new tenants or to move back into the house. In this meeting defendant COLBERT agreed that defendants would make sure that the payments on the first trust deed would be made by defendants for at least three years so that ANSPACH could move back into the house and would not have to get tenants in order to maintain it. It was clearly understood by COLBERT and ANSPACH that plaintiff would not be expected to make any payments to PROTEUS on the $476,000 trust deed in the spring of 1995, when it became "due" on paper, or at any other time until she could afford to do so. ANSPACH was again assured that she had nothing to worry about and that defendants would make sure that she would not lose the house. COLBERT knew at the time of the September 1994 meeting that ANSPACH would move back into the house and would not get new tenants based on his representations at the time. The parties discussed the fact that ANSPACH had to move back into the house in October, if no new tenants were obtained, because it was necessary for the house to be occupied. <p>
23. Based on these representations plaintiff ANSPACH did not rent her home to new tenants and she did not make payments on the first trust deed. ANSPACH moved more than 350 boxes of her and her children's personal belongings back into the house in October 1994. Over ninety of these boxes contain Caleb's belongings. She began to refurbish the house, as had been discussed with COLBERT. Relying on COLBERT's representation" that he would take care of the first trust deed payments, ANSPACH did not obtain new tenants for the house and organized her personal and business life around COLBERT's assurances that she need not worry about paying the first trust deed or about any payments theoretically "due" under the second trust deed. <p>
24. In January 1995 defendants, without warning, suddenly stated that they would not abide by any of the above-described promises, assurances and representations and intended to foreclose on plaintiff's home. Since then plaintiff has been subjected to extreme emotional distress, as defendants have proceeded to foreclose on her family home despite years of promises that they would never do so. <p>
25. NICHOLSON and COLBERT began trustee's sale proceedings on or about August 2, 1995, in violation of their agreement with ANSPACH. In November 1995, defendants' attorneys promised that they would give plaintiff 30 days advance notice of their intention to publish a Notice of Sale. In reliance on this promise plaintiff did not seek a preliminary injunction. <p>
DEFENDANTS' OUTRAGEOUS AND MANIPULATIVE CONDUCT <p>
26. In 1988, plaintiff ANSPACH turned to defendant NICHOLSON for help because of their long-term relationship over the years since their 1969 affair and because he was the father of their son, Caleb. COLBERT and NICHOLSON falsely led ANSPACH to believe that they were interested in doing what was best for her and Caleb. ANSPACH was falsely led to believe that defendants were acting in good faith and with integrity and fidelity toward her. <p>
27. Defendants instead acted in bad faith toward ANSPACH by persuading her to sign their "loan" documents with assurances that she would not lose the house. NICHOLSON exploited ANSPACH's dire financial and emotional situation and Caleb's longing for a real relationship with his father to exact revenge for his anger at ANSPACH. NICHOLSON and COLBERT used the power they acquired through the "loans" to deter ANSPACH from speaking publicly about NICHOLSON, to keep her dependent on defendants, to verbally abuse her, to make inappropriate advances toward her, and to cause her severe emotional distress. NICHOLSON subjected ANSPACH to outrageous verbal abuse in conversations they had starting in 1994 and continuing into the Spring of 1995. The only reason NICHOLSON had the opportunity to subject ANSPACH to this outrageous abuse was the control he had acquired over her through the 1989 and 1992 "loans." <p>
28. Between 1989 and 1995, defendants subjected ANSPACH to physical and emotional abuse based upon the financial control they obtained over her through the 1989 and 1992 "loans." Defendant COLBERT made unwelcome sexual advances to ANSPACH on many occasions when she was forced by NICHOLSON to deal with COLBERT regarding money matters. Defendants repeatedly resisted any proposal from ANSPACH concerning the house that would eliminate their control over her. <p>
29. NICHOLSON's outbursts were intended to humiliate and degrade ANSPACH and to cause her severe emotional distress to pay her back for past hurt feelings felt by NICHOLSON. The language used by NICHOLSON was outrageous and vulgar. His tone of voice was uncivilized and intentionally demeaning to ANSPACH. NICHOLSON knew how upset and vulnerable ANSPACH was and he intentionally imposed severe emotional distress on her. He repeatedly referred to her body parts and used vulgar language to demean her efforts over the years to be independent. <p>
30. In 1994, ANSPACH wrote a letter to Vanity Fair magazine in 1994, concerning NICHOLSON's fatherhood of Caleb. ANSPACH's letter angered NICHOLSON. NICHOLSON publicly reprimanded ANSPACH in The New York Times, called and verbally abused her, and punished her through the control he had over her home. After the Vanity Fair letter, NICHOLSON's verbal abuse of ANSPACH became frequent, malicious, and vulgar. Defendant NICHOLSON screamed at ANSPACH that "women are all weak, frightened c---s." NICHOLSON told ANSPACH she was an "idiot" and a "bitch," and that ANSPACH was "an unpredictable c---." In or about March, 1994, defendant NICHOLSON laughed at ANSPACH's predicament and taunted, "you're a miserable bitch, a miserable drunken bitch, and now you owe me money too." These words were intended to and had the effect of causing ANSPACH severe emotional distress. Defendants' retaliation against ANSPACH culminated in the initiation of foreclosure proceedings on her home in August, 1995, completely forsaking their promises that they would not enforce the "loans." <p>
31. Between 1988 and the present, ANSPACH has suffered and been treated for physical and mental manifestations of the emotional distress defendants caused her. ANSPACH has been treated for stress-related recurring cluster headaches, severely exacerbated allergies, premature menopause, grinding down her teeth, recurring bladder and yeast infections, dry skin, hair loss, a double hernia, and stress-induced arthritis. ANSPACH's psychological harm is also severe. ANSPACH has been treated for panic attacks, trauma, anxiety, depression, acute sleep disturbances, nightmares, suicidal ideations, and eating disorder. <p>
FIRST CAUSE OF ACTION
(Fraud)
(Against All Defendants)<p>
32. Paragraphs 1 through 31 are incorporated by reference and realleged as if set forth herein. <p>
The 1989 "Loan"<p>
33. In 1988, NICHOLSON and COLBERT promised falsely that ANSPACH would not lose her home by signing the "loan" documents and that plaintiff would only have to repay the "loan" when her career had rebounded and she had the financial resources to do so. Plaintiff is informed and believes that NICHOLSON and COLBERT made this representation without any intention of performing it. Instead, NICHOLSON made the representation to placate ANSPACH and cause her to feel that he was upholding his obligation to ANSPACH and Caleb and to put himself in a position to exert control over her. COLBERT knowingly participated in NICHOLSON's plan to obtain control over ANSPACH by falsely promising her that the "loan" would not be collected unless she was able to repay it. Defendants led ANSPACH to believe that she signed the "loan" documents only for the tax and other benefits they would give NICHOLSON. <p>
34. Defendants intended to use the control they obtained over ANSPACH to prevent her from speaking publicly about NICHOLSON and to emotionally manipulate ANSPACH for purposes of revenge. COLBERT intended to use his powerful position as NICHOLSON's agent to make inappropriate advances toward ANSPACH. Defendants conspired to take advantage of ANSPACH by exploiting her desire to keep the family home, while defendants enjoyed tax benefits and the power to manipulate ANSPACH's life. <p>
35. ANSPACH reasonably relied on NICHOLSON and COLBERT's promises by signing the "loan" documents based on defendants' assurances, remaining in the house and not selling it. ANSPACH was harmed in an amount exceeding $1 million because she relied on defendants' promises to her detriment in deciding not to sell the house in 1989. Plaintiff would never have kept the house if she knew that defendants would abandon her and initiate foreclosure of her home. <p>
The 1992 "Loan"<p>
36. In 1992, defendants promised falsely that ANSPACH would not lose her home by signing the PROTEUS "loan" documents. Defendants assured ANSPACH that the "loan" documents were for the tax benefits they provided NICHOLSON only, and that ANSPACH would not be expected to repay the "loan" until her career rebounded and she had the financial resources to do so. Defendants did not intend to keep their promises to ANSPACH. Instead, defendants intended to use the power obtained by persuading ANSPACH to sign the "loan" documents to deter her from speaking publicly and to control her. COLBERT knowingly participated in NICHOLSON's plan to harm ANSPACH. <p>
37. ANSPACH reasonably relied on defendants, promises by foregoing sale of the house in 1992, though she could have made a profit of at least $500,000 if she had sold the house in 1992. Plaintiff would never have kept the house if she knew that defendants would abandon her and initiate foreclosure of her home in August, 1995. <p>
The September 1994 Promises<p>
38 . COLBERT, acting as NICHOLSON's agent, promised ANSPACH that defendants would take care of the first bunt deed payments for at least three years and that she would not lose her home due to defendants' "loan" during the next three years. Defendants maliciously intended that ANSPACH rely on these promises so that they could carry out their plan to control her public statements and harm her by foreclosing on their "loan." <p>
39 . ANSPACH did rely on COLBERT's promises by moving back into the house instead of finding new tenants to move into the home so that the first trust deed payments could be made. Had ANSPACH known that defendants would not keep these promises, she would have rented the house to new tenants, and could have paid the first mortgage payment with the rental proceeds. She would not have gone to the expense and difficulty of moving back into the home or of beginning to refurbish the house. By waiting until January 1995 to renege on their promises, defendants made it impossible for ANSPACH to maintain her home even by obtaining new tenants. <p>
40. As a result of defendants' actions, plaintiff has been damaged by the loss of profits she would have received had she sold her home in 1989 or 1992; by the loss of her home; and by the emotional distress she has suffered because of defendants' fraudulent actions, in an amount to be determined at trial. <p>
41. Defendants acted with malice, fraud, and oppression to plaintiff; therefore plaintiff is entitled to an award of punitive damages in an amount to be determined at trial. <p>
SECOND CAUSE OF ACTION
(Breach of Contract)
(Against All Defendants)<p>
42. The allegations contained in paragraphs 1 through 41 are incorporated by reference and fully realleged as if set forth herein. <p>
The 1989 Contract<p>
43. Defendant NICHOLSON directly, and through his agent and co-conspirator COLBERT, promised ANSPACH that she would not have to repay the money he advanced to her in 1989 unless she was in a financial condition to do so and that he would not take any steps to cause ANSPACH to lose her home as a result of the money he "loaned" to her or the "loan" papers he asked her to sign with Proteus for NICHOLSON'S benefit. <p>
44. Defendant NICHOLSON's promises are enforceable because of his long standing legal and moral obligation to support his son Caleb. Defendant COLBERT promised ANSPACH that the "loan" papers were for tax purposes only, and specifically assured ANSPACH that she would not lose her home by signing the "loan" documents. As Caleb's father, NICHOLSON had a past enforceable legal obligation to support him until Caleb reached eighteen years of age. NICHOLSON also had a moral obligation to support his son. The aforementioned detrimental reliance by ANSPACH, combined with NICHOLSON's past legal and moral obligations to ANSPACH and Caleb, create an implied contract. NICHOLSON has breached this contract by initiating proceedings to foreclose on the home. This sale is based on ANSPACH's default of the purported "loan," which when made, was agreed by all parties to be a loan only for tax purposes. <p>
45. Plaintiff ANSPACH relied on defendants' promises when she signed the purported "loan" documents and by not selling the house in 1989 when it was worth approximately $1.5 million. Had defendants not promised ANSPACH that they would help her keep the family home in 1989, ANSPACH would have had no choice but to sell the home and would have made a profit of $1 million, the exact amount to be proven at trial. <p>
The 1992 Contract<p>
46. Defendants promised ANSPACH in 1992 that she would not lose her home by signing the "loan" documents and that she would not have to repay the "loan" if she could not do so. Defendants' 1992 promises are enforceable because of NICHOLSON's moral obligation and his past enforceable legal obligation to support Caleb, combined with ANSPACH's change in position based on defendants' promises. ANSPACH relied on these promises, signed the "loan" documents and did not sell her house in 1992. <p>
47. Had defendants not promised ANSPACH that they would continue to help her keep the family home in 1992, she would have been forced to sell the home. At that time ANSPACH would have earned a profit of at least $500,000, an exact amount to be proven at trial. <p>
The September 1994 Contract<p>
48. Defendant COLBERT, as NICHOLSON's agent and coconspirator, promised ANSPACH that defendants would pay the first mortgage payments for three years and that ANSPACH would not be expected to make payments on the PROTEUS "loan" in the Spring of 1995, or at any other time. Based on these promises, ANSPACH did not find new tenants, and moved into the house in September of 1994. <p>
49. Had defendants not promised ANSPACH that they would pay the first mortgage payments for three years, ANSPACH would have re- rented the house to new tenants and could have covered the first mortgage payments with the rental income. <p>
50. Defendants are estopped from raising the Statute of Frauds as a bar to enforcement of the aforementioned contracts because ANSPACH changed position by signing the "loan" documents and not selling her home and in 1994 moved back into the house instead of re-renting it, in reliance upon defendants' oral promises. ANSPACH will be unconscionably injured by the loss of her home if the agreement is not enforced. <p>
51. ANSPACH seeks specific performance of the implied contracts and damages in an amount to be determined at trial. <p>
THIRD CAUSE OF ACTION
(Promissory Estoppel)
(Against All Defendants)<p>
52. Paragraphs 1 through 51 are incorporated by reference and realleged as if set forth herein. <p>
The 1989 Promises<p>
53. In 1988, defendants promised ANSPACH that she did not have to repay the "loan" unless and until she was able, and that by signing the "loan" papers she would not lose her house. NICHOLSON made these promises in response to ANSPACH when she asked him why she had to sign these "loan" documents and whether she should sign them because she did not want to lose her home. Defendant COLBERT assured ANSPACH that the "loan" papers were never to be enforced by their terms; they were for the tax benefits they would provide to NICHOLSON only. The promises made by defendants were specific and unambiguous, otherwise ANSPACH would not have signed the "loan" documents. <p>
54. NICHOLSON and COLBERT expected ANSPACH to reasonably rely on their promises to take care of the house. On January 17, 1989, when the first "loan" in the amount of two hundred five thousand dollars ($205,000.00), was given to ANSPACH, NICHOLSON and COLBERT expected ANSPACH to rely on their promises by refraining from selling the house at that time. <p>
55. It was reasonable for ANSPACH to rely on defendants' promises. ANSPACH verified whether she should rely on COLBERT's promises on NICHOLSON's behalf by calling NICHOLSON in late 1988, before she signed the "loan" papers to seek reassurance from NICHOLSON that she would not lose her house by signing the documents. NICHOLSON reassured ANSPACH that she would not lose her home and he would not abandon her. The entire basis of the conversations between ANSPACH and COLBERT was that ANSPACH would not have to repay these "loans" until she was in a financial position to do so. <p>
The 1992 Promises<p>
56. Defendants promised ANSPACH in 1992 that she did not have to repay the "loan" until she was financially able, and that she would not lose her house as a result of signing the "loan" documents. COLBERT assured ANSPACH that the "loan" documents were for tax purposes only and ANSPACH would not be expected to repay unless she was financially able to do so. <p>
57. Again on March 31, 1992, when the second "loan" agreement was made between ANSPACH and NICHOLSON and COLBERT, defendants expected her to rely on their promises by not selling the house. ANSPACH did refrain from selling the house, though she could have earned a profit of at least $500,000, had she known that defendants would not keep their promises. <p>
58. It was reasonable for ANSPACH to rely on these promises. COLBERT again reassured ANSPACH that she would not lose her home by signing the "loan" documents and that the basis of the parties, agreements was the intention of keeping the family home for Caleb. ANSPACH was again assured by defendants that she would not be expected to repay the "loans" until she became financially able to do so. <p>
59. Defendants are estopped from denying their obligations to ANSPACH by ANSPACH's reasonable reliance on their promises. <p>
60. ANSPACH will suffer the loss of the property as a result of NICHOLSON's breach. The loss of this unique piece of real estate, which has great significance to Caleb as a family anchor, I would be irreparable. <p>
61. ANSPACH seeks specific performance of NICHOLSON's promise. ANSPACH also seeks damages for costs incurred in reliance on NICHOLSON's promises in an amount to be determined at trial. <p>
The September 1994 Promise<p>
62. COLBERT, acting as NICHOLSON's agent, made a specific promise to extend the "loan" to ANSPACH for at least three years and to pay the payments on the first mortgage on the home for three years. The manner in which this would be accomplished was left to COLBERT. COLBERT knew that ANSPACH would rely on his promises based on the explicit discussion that ANSPACH had to move back into the house so that it would not remain empty. <p>
63. ANSPACH reasonably relied on COLBERT's promise", by moving back into the house in October 1994 and in foregoing obtaining new tenants to live in the house and make the payments on the first trust deed. She incurred considerable expenses in moving back into the home and began to refurbish the home based on defendants, representations. <p>
64. Defendants are estopped from asserting the statute of frauds as a bar to enforcement of this oral promise because ANSPACH changed her position by moving back into the house in reliance on COLBERT's promises. <p>
65. ANSPACH will suffer the loss of the property, a unique and irreplaceable piece of real estate, due to the trustee's sale proceedings which were initiated on or about August 2, 1995. This unconscionable injury will result from NICHOLSON and COLBERT's failure to uphold their promise to make the payments on the first trust deed and extend the "loan" for three years. ANSPACH was also harmed in the amount of the cost and time of moving back into the house in reliance on COLBERT's promises. <p>
66. ANSPACH seeks specific performance of COLBERT's agreement to extend the "loan" for three years and pay the first for three years. ANSPACH also seeks damages for costs incurred in reliance on COLBERT's promises in an amount to be determined at trial. <p>
FOURTH CAUSE OF ACTION
(Rescission)
(Against All Defendants)<p>
67. Paragraphs 1 through 66 are incorporated by reference and realleged as if set forth herein. <p>
68. ANSPACH trusted that NICHOLSON and his agent, COLBERT, to act with integrity and fidelity because of what she believed at the time was her long-term, close and trusting relationship with NICHOLSON. ANSPACH placed faith in this relationship because NICHOLSON is the father of their child. <p>
69. NICHOLSON and COLBERT used this confidential relationship with ANSPACH to gain an unfair advantage over her by influencing her through their promises that she wouldn't lose the house and their assurances that she should not worry, to sign the "loan" papers for both the $205,000 and the subsequent $476,000 "loan" against her home. <p>
70. When ANSPACH signed these "loan" documents, defendants obtained control and an unfair advantage over ANSPACH which NICHOLSON used to influence her behavior, to punish her, and ultimately to foreclose on her home. Both NICHOLSON and COLBERT were aware that ANSPACH was in an anxious and vulnerable state over her financial, emotional and professional difficulties. ANSPACH feared that she would lose the family home which held great meaning for their son Caleb. By influencing ANSPACH to sign the "loan" documents based on the deceptive promises that the "loans" would never be collected, NICHOLSON and COLBERT took unfair advantage of ANSPACH's distress. NICHOLSON and COLBERT put ANSPACH in this oppressive situation to gain control over her. <p>
71. ANSPACH seeks rescission of the "loan" agreements because they were based on defendants' undue influence amounting to constructive fraud. Plaintiff also seeks damages under C.C. Sec. 3343(a)(3) because by inducing ANSPACH to sign her home over to them through an unrealistic "loan" at an exorbitant interest rate, defendants induced her to part with her property. This inducement caused ANSPACH to refrain from selling the house in 1989, when its value was approximately $1.5 million. ANSPACH suffered consequential damages of approximately $1 million, the exact amount to be proven at trial. ANSPACH also seeks consequential damages for the money and time spent moving in and out of an apartment in Venice, California in her attempts to encourage NICHOLSON and COLBERT to keep their promises. <p>
72. ANSPACH is not required to restore benefits to defendants as a condition of her rescission claim because ANSPACH has suffered damages in excess of the benefits to be restored because of defendants' fraudulent undue influence, thus the court should determine any offsets in its final decree, and defendants' fraudulent actions have made plaintiff ANSPACH financially unable to restore benefits and to require restoration would deny ANSPACH the ability to seek relief. <p>
FIFTH CAUSE OF ACTION
(Intentional Infliction of Emotional Distress) (Against All Defendants) <p>
73. Paragraphs 1 through 72 are incorporated by reference and realleged as if set forth herein. <p>
74. Defendants intended to gain control over ANSPACH by creating paper obligations from ANSPACH to PROTEUS that would cause her to lose her family home and cause her extreme emotional distress. On information and belief defendant NICHOLSON has used these transactions to retaliate against ANSPACH for her independence and her independent rearing of their son Caleb and for public statements she has made about the fact that NICHOLSON is Caleb's father. <p>
75. NICHOLSON used the power he obtained over ANSPACH through the "loan" agreement, to manipulate her emotionally and attempt to control ANSPACH's ability to speak publicly about Caleb, due to the constant threat that NICHOLSON could let her lose her home if she made him unhappy. NICHOLSON and COLBERT were aware of ANSPACH's emotionally and financially vulnerable state, yet NICHOLSON called her names, used vulgar language to her, laughed at her and humiliated her for being in the situation NICHOLSON had put her in because of defendants' false promises. COLBERT used this power over ANSPACH to assist NICHOLSON in his plan to manipulate ANSPACH and to make sexual advances toward ANSPACH. The aforementioned conduct of defendants was outrageous, intentional and malicious and was done with wanton and reckless disregard of the consequences to plaintiff. Defendant NICHOLSON intended by his outrageous conduct to retaliate against plaintiff, inter alia, for keeping him out of Caleb's life between 1970 and 1978 and for writing about his relationship to Caleb in Vanity Fair magazine. <p>
76. As a proximate result of defendants' outrageous, willful, wanton and malicious conduct plaintiff has suffered stress-related physical ailments and severe mental and emotional distress. As a result of these injuries plaintiff has suffered special and general damages in an amount according to proof. Because defendants' actions were malicious, oppressive and fraudulent and showed reckless disregard for the consequences they would cause to ANSPACH, plaintiff is also entitled to punitive damages in an amount according to proof. <p>
SIXTH CAUSE OF ACTION
(Negligent Infliction of Emotional Distress) (Against All Defendants) <p>
77. Paragraphs 1 through 76 are incorporated by reference and realleged as if set forth herein. <p>
78. Defendants had a confidential relationship with ANSPACH based on the length and closeness of ANSPACH's relationship to NICHOLSON because he is the father of their son. Defendants led ANSPACH to believe that they were acting with integrity and fidelity in her best interests. Defendants' relationship with ANSPACH created a duty to exercise reasonable care in their relations with plaintiff. <p>
79. Defendants knew ANSPACH was in an extremely vulnerable state when she came to them for help. Based on defendants' close relationship to ANSPACH and their awareness of her vulnerabilities, defendants were able to foresee that failure to exercise care in their dealings with plaintiff would cause plaintiff emotional distress. <p>
80. By reason of their wrongful acts, as evidenced herein, plaintiff has suffered stress-related physical harm and extreme emotional distress. As a result, plaintiff has suffered general and special damages in an amount according to proof. <p>
81. As a proximate result of defendants' outrageous, willful, wanton and malicious conduct plaintiff has suffered stress-related physical ailments and severe mental and emotional distress. As a result of these injuries plaintiff has suffered special and general damages in an amount according to proof. Because defendants' actions were malicious, oppressive and fraudulent, and showed reckless disregard for the consequences they would cause to ANSPACH, plaintiff is also entitled to punitive damages in an amount according to proof. <p>
SEVENTH CAUSE OF ACTION
(Declaratory Relief)
(Against All Defendants)<p>
82. Paragraphs 1 through 81 are incorporated by reference and realleged as if set forth herein. <p>
83. An actual and substantial controversy has arisen between the parties requiring the issuance of declaratory relief. Defendants claim that they may enforce the terms of the second trust deed on plaintiff's home and that they have no obligations to make the payments on the first trust deed on plaintiff's home through September 1997. Plaintiff contends that defendants promised not to foreclose on her family home to enforce the second trust deed and to take care of the first trust deed payments until at least September 1997. <p>
84. Plaintiff requests this Court to resolve this controversy by issuing a declaratory judgment that defendants may not enforce their second trust deed on plaintiff's home by foreclosure and that defendants must make all payments on the first trust deed to plaintiff's home until at least September 1997. <p>
WHEREFORE, Plaintiff prays for judgment against Defendants and each of them as follows: <p>
AS TO ALL CAUSES OF ACTION<p>
1. Compensatory damages in excess of $1 million according to proof; <p>
2. Costs of suit incurred herein; and<p>
3. For such relief as the court shall deem just and proper. <p>
AS TO THE SECOND AND THIRD CAUSES OF ACTION ALONE <p>
4. Specific performance of the contract between Plaintiff and Defendants; <p>
AS TO THE FIRST FIFTH AND SIXTH CAUSES OF ACTION ALONE <p>
5. Punitive damages according to proof.<p>
AS TO THE FIRST, SECOND, AND THIRD CAUSES OF ACTION ALONE <p>
6. For a permanent and preliminary injunction preventing defendants from foreclosing on plaintiff's home and such other injunctive relief as may be necessary to make plaintiff whole. <p>
AS TO THE FIRST AND FOURTH CAUSES OF ACTION ALONE <p>
7. For rescission of the "loan" agreements and cancellation of the second trust deed. <p>
AS TO THE SEVENTH CAUSE OF ACTION<p>
10. For a declaratory judgment that defendants may not enforce their second trust deed by foreclosing on plaintiff's home and that defendants must maintain the payments on the first trust deed until at least September 1997. <p>
DATED: January 17, 1996<p>
LAW OFFICES OF PAUL L. HOFFMAN<p>
BY: /s/
PAUL L. HOFFMAN
Attorneys for Plaintiff
SUSAN ANSPACH<p>
VERIFICATION<p>
I have read the foregoing COMPLAINT and know its contents. <p>
I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. <p>
Executed this 17th day of January, 1996, at Santa Monica, California. <p>
/s/
SUSAN ANSPACH<p>
PROOF OF SERVICE<p>
[1013a (3) CCP Revised 5-1-88]<p>
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES <p>
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 100 Wilshire Boulevard, Suite 1000, Santa Monica, California 90401. <p>
On January 17, 1996, I served the foregoing document described as FIRST AMENDED COMPLAINT FOR (1) FRAUD; (2) BREACH OF CONTRACT; (3) PROMISSORY ESTOPPEL; (4) RESCISSION; (5) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; (6) NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS; and (7) DECLARATORY RELIEF on the party(ies) in this action: <p>
_X_ by placing the true copies thereof in sealed envelope" as stated on the attached mailing list; <p>
___ by placing the original a true copy thereof enclosed in a sealed envelope(s) addressed as follows: <p>
_X_ BY MAIL<p>
___ I deposited such envelope in the mail at Santa Monica, California. The envelope was mailed with postage thereon fully prepaid. <p>
_X_ As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Monica, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. <p>
Executed on January 17, 1996, at Santa Monica, California. <p>
I declare under penalty of perjury under the laws of the State of California that the above is true and correct. <p>
/s/
JONI D. ARLAIN<p>
SERVICE LIST<p>
RUSSELL FRACKMAN
HAYWARD KAISER
JEFFREY GOLDMAN
Mitchell, Silberberg & Knupp
11377 West Olympic Boulevard
Los Angeles, CA 90064<p>
Attorneys for JACK NICHOLSON and PROTEUS FILMS, INC. <p>
