Motion-Secondary: EMILIA SANCHEZ VS. NIMER MASSIS ET AL

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                                JOHNNY D. KNADLER (SBN 220942)
LAW OFFICE OF JOHNNY D KNADLER
1527-E Pershing Drive

San Francisco, CA 94129

Telephone: (310) 564-6695

Facsimile: (888) 323-0611

Attorneys for Defendant/Cross-complainant
NIMER MASSIS

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

02/21/2019

Clerk of the Court

BY: EDNALEEN ALEGRE
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

EMILIA SANCHEZ,

Plaintiff,
ve
NIMER MASSIS, et al.,
Defendants,
NIMER MASSIS,
Cross-
Complainant

EMILIA SANCHEZ,
Cross-Cross-
Defendant

Case No. CGC-18-569861

DEFENDANT/CROSS-COMPLAINANT’S
OPPOSITION TO PLAINTIFF/CROSS-
DEFENDANT EMILIA SANCHEZ’S
MOTION TO DEMURRER CROSS
PLAINTIFF’S COMPLAINT

+

Date: March 6, 2019

Time: 9:30 a.m.

Dept.: 302

Reservation #: 01290306-06

Complaint filed: September 18, 2018
Cross-complaint filed: January 25, 2019

OPPOSITION TO DEMURRER

1INTRODUCTION

Defendant/Cross-complainant Nimer Massis filed a cross-complaint against Plaintiff/Cross-
defendant Emilia Sanchez on January 25, 2019. In the crass-complaint, Cross-complainant alleges
that Sanchez failed to pay monies due for a business that she was buying from Cross-complainant. In
the cross-complaint, Cross-complainant alleges six causes of action against Sanchez: (1) breach of
contract, (2) fraud, (3) conversion, (4) unjust enrichment, (5) monies had and received, and (6)

indemnity.
On January 31, 2019, Plaintiff/Cross-defendant filed a demurrer.!

LEGAL ARGUMENT

Judicial policy favors resolving cases on their merits rather than through technical challenges
to the pleadings. A demurrer raises issues of law, not fact, regarding the opposing party’s pleadings.
Donabedian v. Mercury Ins, Co. (2004) 116 Cal.App.4" 968, 994, A court is to assume all facts pled
in the complaint to be true and may not consider facts asserted in memorandum supporting the
demurrer. Afuso v. U.S. Ftd. Guar, Co. (1985) 169 Cal.App.3d 859, 862; Blank v, Kirwan (1985) 39
Cal.3d 311, 318.

I. An Amended Cross-complaint was filed which moots the demurrer.

On February 20, 2019, Defendant/Cross-complainant filed and served an amended cross-
complaint. A copy of the First Amended Cross-complaint is attached as Exh, | to the Declaration of
Johnny Knadler.

Under Cal. Code. Civ. Pro. Code § 472(a), “A party may amend its pleading once without
leave of the court at any time before . . . after a demurrer is filed but before the demurrer is heard if
the amended complaint, cross-complaint, or answer is filed and served no later than the date for filing
an opposition to the demurrer.” In this case, the motion date is set for March 6, 2019, and the

opposition to the demurrer is due nine (9) court days before the hearing. Cal. Code. Civ. Pro. §

' Tt is notable that the copy served on Defendant/Cross-complainant differs from the filed version.
Defendant/Cross-complainant’s copy has different paper with lines on the left margin, a different
signature at the end, and an unsigned declaration. The proof of service is also different because it is
signed by “Luis”. To date, Defendant/Cross-complainant has never received a copy of the filed
motion from Plaintiff/Cross-defendant.

OPPOSITION TO DEMURRER
21005(6). The opposition is due on February 21, 2019. The first amended cross-complaint was filed
10 days before the hearing date. “Because there is but one complaint in a civil action [citation], the
filing of an amended complaint moots a motion directed to a prior complaint.” State Compensation
Ins, Fund v. Sup. Ct. (2010) 184 Cal-App.4" 1124, 1130-31.

Accordingly, the demurrer is moot.

Il. The Complaint meets California’s heightened pleading standards for Fraud Claims.

Plaintift/Cross-defendant contends that the cross-complainant does meet the heightened
pleading standards under California law.

The party alleging fraud must at least allege a representative selection of the
misrepresentations sufficient enough for the trial court to ascertain if the statements were material
and actionable. Goldrich v. Natural ¥ Surgical Specialties, Inc. (1994) 25 Cal.App.4" 772, 782-783;
Committee on Children’s Televison, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 and 218.
Less specificity and particularity is required when the allegations indicate that the cross-defendant
necessarily possesses full information concerning the facts of the controversy or “when the facts lie
more in the knowledge of the opposite party ....” Bradley v. Hartford Acc. & Indem. Co. (1973) 30
Cal.App.3d 818, 825; Turner vy. Milstein (1951) 103 Cal.App.2d 651, 658; Committee on Children’s
Television, Inc., 35 Cal.3d at 216-17.

In this case, Defendant/cross-complainant states that “Cross-defendant made representations
to Cross-complainant that she would abide by the terms of the Lease including payment of rent,
payment of utilities and compliance with applicable laws.” Cross-compliant © 22. Cross-defendant
elaborated that cross-defendant agreed to make necessary improvements and that she omitted
material facts related to her ability to operate the restaurant. Cross-complainant relied on these
representations in turning over the restaurant over to Cross-defendant. As a result of these acts,
Cross-complainant lose money.

‘These allegations are sufficient to meet the elements of fraud because they demonstrate a
knowledge of falsity on the part of Sanchez who was aware that she would not abide by the terms of
the lease, an intent to induce reliance to obtain (he restaurant, Defendant/cross-complainant’s reliance

upon Sanchez’s representations, and resulting damage.

OPPOSITION TO DEMURRER
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Accordingly, the court should overrule the demurrer as it relates to the fraud claim.
IUL.If the demurrer is sustained, Defendant/cross-complainant should be allowed to amend.
In the event that the Court sustains the demurrer, Defendant/cross-complainant requests leave

to amend.

Dated: February 21, 2019 LAW OFFICE OF JOHNNY D. KNADLER
{ 9
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Nw Xa nocd Dh
JOHNNY D. KNADLER

Attorneys for Defendant/Cross-complainant
NIMER MASSIS

SS

By:

OPPOSITION TO DEMURRER
4PROOF OF SERVICE
STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO

1am employed in the county of San Francisco, State of California. 1 am over the age of 18
and not a party to the within action; my business address is Law Offices of Johnny D. Knadler,
1527-E Pershing Drive, San Francisco, CA 94129

On February 21, 2019, I served the foregoing document(s):

Defendant/Cross-complainant’s opposition to Plaintiff/eross-defendant Emilia Sanchez’s
motion to demurrer Cross Plaintiff's complaint; Declaration of Johnny D Knadler in
support of Defendant/Cross-complainant’s opposition to Plaintiff/cross-defendant Emilia
Sanchez’s motion to demurrer Cross Plaintiff’s complaint with attached exhibit

on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope(s)
addressed and sent as follows:

ROSEANN TORRES 1 .
Torres LAw GROUP PLAINTIFF/CROSS-DEFENDANT
300 FRANK H. OGAWA PLAZA #203 EMILIA SANCHEZ

OAKLAND, CA 94612

(510) 835-2484

Fax: (510) 835-2381

{[X] BY MAIL (By Following Office Business Practice): 1am readily familiar with this firm’s
practice of collection and processing correspondence for mailing. It is deposited with the
U.S. Postal Service on that same day in the ordinary course of business. I placed such
envelope(s) for collection and mailing on that date following ordinary business practice.

{] BY ELECTRONIC MAIL: I personally emailed to each addressee(s) as designated above
and/or via the Electronic mail service used by the Court.

I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
Executed on February 21, 2019, at San Francisco, California.

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A
c. 7 D.Knadler ~~

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PROOF OF SERVICE