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ROSEANN TORRES, SBN 206050 ELECTRONICALLY
TARA MACOMBER SBN 264725 FILED
TORRES LAW GROUP. Superior Sour of Cabfornia,
‘ounty of San Francisco
300 Frank H Ogawa Plaza #203 01/31/2019
Oakland, CA 94612
Tel 510.835.2484
Fax 510.835.2381
Clerk of the Court
BY:MEREDITH GRIER
Deputy Clerk
Attorney for Plaintiff
Emilia Sanchez
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY SAN FRANCISCO
UNLIMITED JURISDICTION
EMILIA SANCHEZ, Case No.: CGC-18-569861
PLAINTIFF/CROSS-DEFENDANT
Plaintiffs, EMILIA SANCHEZ’S NOTICE OF
MOTION AND MOTION TO
vs. DEMURRER CROSS PLAINTIFF’S
COMPLAINT; MEMORADUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION;
DECLARATION OF TARA J.
MACOMBER
NIMER MASSIS; NAAJ INC., a California
Corporation, and DOES 2 through 10,
inclusive,
Date: March 6, 2019
Time: 9:30am
Dep’t:302
Judge: The Honorable Ethan P. Schulman
Action filed: September 18, 2018
Defendants.
CROSS ACTION
Trial Date: TBD
Reservation #: 01290306-06
TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
DEMURRER TO CROSS-
COMPLAINT
TORRES LAW GROUPNOTICE IS HEREBY GIVEN that on Tuesday March 6, 2019 at 9:30 a.m. or as soon
thereafter as the matter may be heard, in department 302 of this court, located at 400 McAllister
Street, San Francisco, CA, Plaintiff/Cross Defendant Emilia Sanchez (hereinafter “Plaintiff’) will,
and hereby does, move for an order demurring Cross-Plaintiff’s complaint.
This Motion is made on the grounds that Plaintiff failed to the cross-complaint fails to
plead facts for the cause of action of fraud with specific but only alleges general and conclusory
facts.
This motion will be based upon this Notice and the accompanying Memorandum of Points
and Authorities set forth below, on the records and file herein, and any evidence as may be
presented at the hearing of the motion.
Dated this January 29, 2019
T ES LAW GROUP
A
Tara Macomber
Attorney for Defendant
Emilia Sanchez
DEMURRER TO CROSS- TORRES LAW GROUP
COMPLAINT 2MEMORANDUM OF POITNS AND AUITHORITIES IN SUPPORT OF DEFENDANT’S
MOTION TO DEMURRER CROSS PLAINTIFF’S COMPLAINT
I. INTRODUCTION
Plaintiff brings this motion to demurrer Cross-Plaintiff’s complaint filed January 25, 2019.
The relevant complaint pleads six causes of action against Plaintiff: Breach of contract, Fraud,
conversion, Unjust enrichment, monies had and lent, and indemnity in regard to a sale of a
restaurant. The cross-complaint fails to plead facts for the cause of action of fraud with specify but
only alleges general and conclusory facts. For these reasons, Plaintiff cannot know what the
allegations are or how to defend such.
Il. RELEVANT FACTS
Plaintiff filed a complaint on September 18, 2018. Plaintiff filed an amended the complaint on
November 28, 2019, stating five causes of action: Breach of Contract written; Breach of Contract
Oral; Fraud; Breach of the Implied Covenant of Good Faith and Fair Dealing; and Promissory
Estoppel. On January 18, 2019, Defendant/Cross Plaintiff Nimer Massis (hereinafter “Defendant’”)
filed a cross complaint and answer to Plaintiff's amended complaint.
The cross-complaint states six causes of action against Plaintiff: Breach of contract, Fraud,
conversion, Unjust enrichment, monies had and lent. The cross-complaint fails to allege how he
was injured and to what extent or what damages were caused.
The cross-complaint alleges that Plaintiff stated she would abide by the terms of the Lease and
agreed to make necessary improvements to comply rectify the violations cited by the City
inspectors. The Cross-complaint then alleges that Plaintiff omitted material facts related to her
ability to operate the restaurant, that Defendant relied upon these and the misrepresentations were
done with intent to deceive. However, Defendant fails to recite what misrepresentations were
made, how they were material, and how he relied upon them to his detriment.
DEMURRER TO CROSS- TORRES LAW GROUP
COMPLAINT 3On January 25, 2019, Defendant’s counsel contacted Plaintiff to meet and confer regarding the
filing of the demurrer.
IH. ARGUMENT
a, COURT SHOULD GRANT DEFENDANT’S DEMURRER BACAUSE
PLAINTIFF HAS FAILED TO STATE FACTS ALLEGING FRAUD WITH
PARTICULARITY..
Code of Civil Procedure § 430.10 states, in pertinent part: “The party against whom a
complaint or cross-complaint has been filed may object, by demurrer or answer as provided in
section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does
not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in
this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon
a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is
implied by conduct.”
A California Court of Appeal has ruled that if a defendant negates and essential element of a
particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu
v. Resolution Trust Corp (1992) 4 Cal. App. 4** 857, 880. A demurrer is not concerned with the
likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their
allegations. Accardi v. Superior Court (1993) 17 Cal. App. 4" 341, 346.
i. PLAINTIFF FAILS TO PLEAD FRAUD WITH PARTICULARITY.
In California, fraud must be pled in the complaint specifically. General and conclusory
allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v.
Nagy (1989) 210 Cal.App.3d 1262, 1268)
Unlike most causes of action where the "the policy of liberal construction of the pleadings,”
fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and
DEMURRER TO CROSS- TORRES LAW GROUP
COMPLAINT 4by what means the representations were tendered." (Stansfield v. Starkey (1990) 220 Cal.App.3d
59, 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
Every element of a fraud cause of action must be alleged both factually and specifically.
(Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General
Insurance (1990) 219 Cal.App.3d 1252, 1262.)
ii, A CAUSE OF ACTION FOR FRAUD.
‘The elements of fraud, which give rise to the tort action for deceit, are (a)
misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity
(or “scienter”); (c) intent to defraud, i-e., to induce reliance; (d) justifiable reliance; and (e)
resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) To maintain any fraud
action, a plaintiff must show that he or she changed position in reliance upon the alleged fraud and
was damaged by that change of position. (Civ. Code, § 1709.) For example, in Lazar, evidence that
the plaintiff had quit his job and moved across the country in reliance upon the defendant’s
misrepresentations, would have been sufficient to demonstrate a detrimental change of position.
(Lazar v. Superior Court, supra, 12 Cal.4th at p. 639.)
Defendant’s cross-complaint alleges fraud. In pleading fraud, Defendant states that Plaintiff
stated she would abide by the terms of the Lease and agreed to make necessary improvements to
comply rectify the violations cited by the City inspectors. The Cross-complaint then alleges that
Plaintiff omitted material facts related to her ability to operate the restaurant, that Defendant relied
upon these and the misrepresentations were done with intent to deceive.
These bare-bones recitations fail to give any facts that establish what misrepresentations
were given, that Plaintiff believed these representations were true or had a Plaintiff had no
reasonable grounds to believe the misrepresentations were false. Furthermore, Defendant has not
DEMURRER TO CROSS- TORRES LAW GROUP
COMPLAINT 5stated any facts to show that he changed position in reliance on Plaintiff's misrepresentations.
Without more, the reader is left guessing as to whether Defendant is confusing a fraud claim with a
breach of contract claim or how they can plead both causes of action simultaneously with these
facts. If a plaintiff is coaxed into a contract, no contract existed and therefore, no breach can occur.
Without any more facts of specificity into the allegations of fraud, Plaintiff cannot know
what allegations are being brought against her or how to defend such. For this reason, Plaintiff
requests the court demurrer Defendant’s cross-complaint because of his failure to adhere to the
pleading standards for the cause of action of fraud.
IV. CONCLUSION
As set forth above, Based on the above, it is requested that Plaintiff's motion to demurrer
Defendant’s cross-complaint be granted.
Respectfully submitted,
Dated this January 29, 2019
TORRES LAW GROUP
Tara Macomber
Attorney for Defendant
Emilia Sanchez
DEMURRER TO CROSS- TORRES LAW GROUP
COMPLAINT 6DECLARATION OF TARA J. MACOMBER
I, Tara J Macomber declare as follows.
1. Lam the attorney for the Defendant in the above-entitled action. I am an associate
attorney at Torres Law Offices representing the Defendant. The following statements are
based upon my personal knowledge and I could competently testify thereto if called as a
witness,
2. On Friday, January 25, 2019, I called opposing counsel at his number as listed in his
California bar profile. He did not answer but the call went to his voicemail.
3. [left a message on his voicemail stating that I was calling to meet and confer regarding
his counter complaint and I intended to demurrer the fraud cause of action unless he
amended. He did not respond
I declare under penalty of perjury under the laws of the state of California that the foregoing is
true and correct.
Executed this 30% day of January 2019 at Oakland California.
Soe
oO
Tara Macomber
DEMURRER TO CROSS- TORRES LAW GROUP
COMPLAINT 727
28
Case name: Sanchez v. Nimer Massis
Superior Court of California~-County of San Francisco. Case No CGC-18-569861
PROOF OF SERVICE
Iam at least 18 years of age, not a party to this action, and I am employed in the county
where the mailing took place. My business address is 300 Frank H. Ogawa Plaza, Ste 203,
Oakland, CA 94612.
On January 30, 2019, I served:
Demurrer to Defendant’s cross complaint
CMC statement
Enclosed in an envelope and addressed as follows:
John D. Knadler
Law Office of Johnny D. Knadler
1527-E Pershing Drive
San Francisco, CA 94129
And by the following method
__x__ US MAIL - by depositing with the United States Postal Service with the postage fully
prepaid
Tam readily familiar with the department’s practice of collection and processing
correspondence for mailing. In the same day that correspondence is placed for collection and
mailing it is deposited in the ordinary course of business with the United States Postal Service
with postage fully prepaid
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct this 30" day of January 2018, at Oakland California.
Tara Macomber
(Type or Print Name) (Signature)
Proof Of Service - 1
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ROSEANN TORRES, SBN 206050 ELECTRONICALLY TARA MACOMBER SBN 264725 FILED TORRES LAW GROUP. Superior Sour of Cabfornia, ‘ounty of San Francisco 300 Frank H Ogawa Plaza #203 01/31/2019 Oakland, CA 94612 Tel 510.835.2484 Fax 510.835.2381 Clerk of the Court BY:MEREDITH GRIER Deputy Clerk Attorney for Plaintiff Emilia Sanchez SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY SAN FRANCISCO UNLIMITED JURISDICTION EMILIA SANCHEZ, Case No.: CGC-18-569861 PLAINTIFF/CROSS-DEFENDANT Plaintiffs, EMILIA SANCHEZ’S NOTICE OF MOTION AND MOTION TO vs. DEMURRER CROSS PLAINTIFF’S COMPLAINT; MEMORADUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF TARA J. MACOMBER NIMER MASSIS; NAAJ INC., a California Corporation, and DOES 2 through 10, inclusive, Date: March 6, 2019 Time: 9:30am Dep’t:302 Judge: The Honorable Ethan P. Schulman Action filed: September 18, 2018 Defendants. CROSS ACTION Trial Date: TBD Reservation #: 01290306-06 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: DEMURRER TO CROSS- COMPLAINT TORRES LAW GROUPNOTICE IS HEREBY GIVEN that on Tuesday March 6, 2019 at 9:30 a.m. or as soon thereafter as the matter may be heard, in department 302 of this court, located at 400 McAllister Street, San Francisco, CA, Plaintiff/Cross Defendant Emilia Sanchez (hereinafter “Plaintiff’) will, and hereby does, move for an order demurring Cross-Plaintiff’s complaint. This Motion is made on the grounds that Plaintiff failed to the cross-complaint fails to plead facts for the cause of action of fraud with specific but only alleges general and conclusory facts. This motion will be based upon this Notice and the accompanying Memorandum of Points and Authorities set forth below, on the records and file herein, and any evidence as may be presented at the hearing of the motion. Dated this January 29, 2019 T ES LAW GROUP A Tara Macomber Attorney for Defendant Emilia Sanchez DEMURRER TO CROSS- TORRES LAW GROUP COMPLAINT 2MEMORANDUM OF POITNS AND AUITHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DEMURRER CROSS PLAINTIFF’S COMPLAINT I. INTRODUCTION Plaintiff brings this motion to demurrer Cross-Plaintiff’s complaint filed January 25, 2019. The relevant complaint pleads six causes of action against Plaintiff: Breach of contract, Fraud, conversion, Unjust enrichment, monies had and lent, and indemnity in regard to a sale of a restaurant. The cross-complaint fails to plead facts for the cause of action of fraud with specify but only alleges general and conclusory facts. For these reasons, Plaintiff cannot know what the allegations are or how to defend such. Il. RELEVANT FACTS Plaintiff filed a complaint on September 18, 2018. Plaintiff filed an amended the complaint on November 28, 2019, stating five causes of action: Breach of Contract written; Breach of Contract Oral; Fraud; Breach of the Implied Covenant of Good Faith and Fair Dealing; and Promissory Estoppel. On January 18, 2019, Defendant/Cross Plaintiff Nimer Massis (hereinafter “Defendant’”) filed a cross complaint and answer to Plaintiff's amended complaint. The cross-complaint states six causes of action against Plaintiff: Breach of contract, Fraud, conversion, Unjust enrichment, monies had and lent. The cross-complaint fails to allege how he was injured and to what extent or what damages were caused. The cross-complaint alleges that Plaintiff stated she would abide by the terms of the Lease and agreed to make necessary improvements to comply rectify the violations cited by the City inspectors. The Cross-complaint then alleges that Plaintiff omitted material facts related to her ability to operate the restaurant, that Defendant relied upon these and the misrepresentations were done with intent to deceive. However, Defendant fails to recite what misrepresentations were made, how they were material, and how he relied upon them to his detriment. DEMURRER TO CROSS- TORRES LAW GROUP COMPLAINT 3On January 25, 2019, Defendant’s counsel contacted Plaintiff to meet and confer regarding the filing of the demurrer. IH. ARGUMENT a, COURT SHOULD GRANT DEFENDANT’S DEMURRER BACAUSE PLAINTIFF HAS FAILED TO STATE FACTS ALLEGING FRAUD WITH PARTICULARITY.. Code of Civil Procedure § 430.10 states, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” A California Court of Appeal has ruled that if a defendant negates and essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp (1992) 4 Cal. App. 4** 857, 880. A demurrer is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations. Accardi v. Superior Court (1993) 17 Cal. App. 4" 341, 346. i. PLAINTIFF FAILS TO PLEAD FRAUD WITH PARTICULARITY. In California, fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268) Unlike most causes of action where the "the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and DEMURRER TO CROSS- TORRES LAW GROUP COMPLAINT 4by what means the representations were tendered." (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.) ii, A CAUSE OF ACTION FOR FRAUD. ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i-e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) To maintain any fraud action, a plaintiff must show that he or she changed position in reliance upon the alleged fraud and was damaged by that change of position. (Civ. Code, § 1709.) For example, in Lazar, evidence that the plaintiff had quit his job and moved across the country in reliance upon the defendant’s misrepresentations, would have been sufficient to demonstrate a detrimental change of position. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 639.) Defendant’s cross-complaint alleges fraud. In pleading fraud, Defendant states that Plaintiff stated she would abide by the terms of the Lease and agreed to make necessary improvements to comply rectify the violations cited by the City inspectors. The Cross-complaint then alleges that Plaintiff omitted material facts related to her ability to operate the restaurant, that Defendant relied upon these and the misrepresentations were done with intent to deceive. These bare-bones recitations fail to give any facts that establish what misrepresentations were given, that Plaintiff believed these representations were true or had a Plaintiff had no reasonable grounds to believe the misrepresentations were false. Furthermore, Defendant has not DEMURRER TO CROSS- TORRES LAW GROUP COMPLAINT 5stated any facts to show that he changed position in reliance on Plaintiff's misrepresentations. Without more, the reader is left guessing as to whether Defendant is confusing a fraud claim with a breach of contract claim or how they can plead both causes of action simultaneously with these facts. If a plaintiff is coaxed into a contract, no contract existed and therefore, no breach can occur. Without any more facts of specificity into the allegations of fraud, Plaintiff cannot know what allegations are being brought against her or how to defend such. For this reason, Plaintiff requests the court demurrer Defendant’s cross-complaint because of his failure to adhere to the pleading standards for the cause of action of fraud. IV. CONCLUSION As set forth above, Based on the above, it is requested that Plaintiff's motion to demurrer Defendant’s cross-complaint be granted. Respectfully submitted, Dated this January 29, 2019 TORRES LAW GROUP Tara Macomber Attorney for Defendant Emilia Sanchez DEMURRER TO CROSS- TORRES LAW GROUP COMPLAINT 6DECLARATION OF TARA J. MACOMBER I, Tara J Macomber declare as follows. 1. Lam the attorney for the Defendant in the above-entitled action. I am an associate attorney at Torres Law Offices representing the Defendant. The following statements are based upon my personal knowledge and I could competently testify thereto if called as a witness, 2. On Friday, January 25, 2019, I called opposing counsel at his number as listed in his California bar profile. He did not answer but the call went to his voicemail. 3. [left a message on his voicemail stating that I was calling to meet and confer regarding his counter complaint and I intended to demurrer the fraud cause of action unless he amended. He did not respond I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed this 30% day of January 2019 at Oakland California. Soe oO Tara Macomber DEMURRER TO CROSS- TORRES LAW GROUP COMPLAINT 727 28 Case name: Sanchez v. Nimer Massis Superior Court of California~-County of San Francisco. Case No CGC-18-569861 PROOF OF SERVICE Iam at least 18 years of age, not a party to this action, and I am employed in the county where the mailing took place. My business address is 300 Frank H. Ogawa Plaza, Ste 203, Oakland, CA 94612. On January 30, 2019, I served: Demurrer to Defendant’s cross complaint CMC statement Enclosed in an envelope and addressed as follows: John D. Knadler Law Office of Johnny D. Knadler 1527-E Pershing Drive San Francisco, CA 94129 And by the following method __x__ US MAIL - by depositing with the United States Postal Service with the postage fully prepaid Tam readily familiar with the department’s practice of collection and processing correspondence for mailing. In the same day that correspondence is placed for collection and mailing it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid I declare under penalty of perjury under the laws of the State of California that the above is true and correct this 30" day of January 2018, at Oakland California. Tara Macomber (Type or Print Name) (Signature) Proof Of Service - 1