Brakke v. Pension Strategies





















Filed 1/15/13 Brakke v.
Pension Strategies CA4/3















NOT TO BE PUBLISHED IN OFFICIAL REPORTS







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

JAMES G. BRAKKE, Individually and as Trustee, etc., et al., Plaintiffs and Appellants, v. PENSION STRATEGIES, LLC, Defendant and Respondent.

G046292 (Super. Ct. No. 30-2009-00315313) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Gregory H. Lewis, Judge. Request for judicial notice. Judgment affirmed. Request granted.

Crandall,
Wade & Lowe, James L. Crandall and Geoffrey T. Hill for Plaintiffs and
Appellants.

Farmer
& Ridley and Rebecca Mocciaro for Defendant and Respondent.



* * *

This
appeal is a companion case to (Brakke v.
Economic Concepts, Inc., (Jan. 15, 2013, G045846) [nonpub.
opn.].) Plaintiffs’ first amended
complaint alleged defendant Pension Strategies, LLC performed the actuarial
calculations used to determine the contributions plaintiffs needed to make to
the pension plan designed by defendant Economic Concepts, Inc. Pension Strategies, LLC’s managing agent,
Maurice Gordan, made the same purportedly false representations as Economic
Concepts, Inc.’s agent; plaintiffs’ pension plan was designed to comply with
former section 412(i) of the Internal Revenue Code (former 26 U.S.C.
§ 412(i), now 26 U.S.C. § 412(e)(3); hereinafter 412(i) plan), was
legal, complied with the tax code, and their entire contribution to the plan
would be tax deductible. The Internal
Revenue Service later determined plaintiffs’ 412(i) plan did not qualify for
favorable tax treatment, resulting in plaintiffs incurring back taxes,
penalties, and other expenses.

Pension
Strategies, LLC filed a separate demurrer to plaintiffs’ first amended
complaint and the hearing and ruling it occurred after the demurrer that
resulted in the dismissal of the action as to Economic Concepts, Inc. Consequently, a separate judgment of
dismissal was entered in favor of Pension Strategies, LLC.

Otherwise
the issues raised and arguments asserted by plaintiffs in this appeal are
identical to those presented in the companion case. In fact, Pension Strategies, LLC has
requested this court take judicial notice
of the appellants’ opening brief and respondent’s brief filed in that same
case. For the reasons set forth in (>Brakke v. Economic Concepts, Inc., >supra, G045846), we shall affirm the
judgment for Pension Strategies, LLC.



Respondent Pension
Strategies, LLC’s request for judicial notice is granted. The judgment is affirmed. Respondent shall recover its costs on
appeal.









RYLAARSDAM,
J.



WE CONCUR:







O’LEARY, P. J.







THOMPSON, J.