On October 18, 2017 a
Motion-Secondary
was filed
involving a dispute between
Bridge, Michael Ray,
Bridge, Sheryl D.,
and
Guarantee Real Estate, A California Corporation,
Higginbotham, Kathy,
Higginbotham, Ken,
for civil
in the District Court of Fresno County.
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WANGER JONES HELSLEY PC
265 East River Park Circle, Suite 3 10
Fresno, California 93720 E-FILED
Telephone: (559) 233-4800 1/23/2018 2:48 PM
Facsimile: (559) 233-9330 FRESNO COUNTY SUPERIOR COURT
Timothy Jones #1 19841 By: R. Faccinto, Deputy
Marisa L.
\oooqauugwm._.
Balch #258332
Attorneys for: Defendant GUARANTEE REAL ESTATE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
CIVIL DIVISION
MICHAEL RAY BRIDGE; '
Case No. 17 CE CG 03536
SHERYL D. BRIDGE,
REPLY IN SUPPORT OF
Plaintiff, DEMURRER TO COMPLAINT
V. Date: January 30, 2018
Time: 3:30 p.m.
KEN HIGGINBOTHAM; an individual; Dept: 501
KATHY HIGGINBOTHAM, an individual;
GUARANTEE REAL ESTATE, a California
corporation; and DOES 1through 15,
inclusive,
NNNNNNNNNflHy—tr-‘r—At—Ii—I—I—Ip—
Defendants.
MNOMAWNHOKDOOVQU‘I-BWNHO
Defendant GUARANTEE REAL ESTATE (“Guarantee”) hereby submits the
following Reply in Support of itsDemurrer t0 the Third Cause of Action of the Complaint for:
(1) Violation 0f Civ. Code Sections 1102 et seq.; (2) Negligence; (3) Fraud; and (4) Breach of
Contract (the “Complaint”) filed herein by Plaintiffs MICHAEL RAY BRIDGE and SHERYL
D. BRIDGE (“Plaintiffs”).
I.
INTRODUCTION
Despite confirming that it is an essential element, Plaintiffs’ Opposition
concedes that there is no allegation that they were “unaware 0f the fact and would not have
acted as he 01‘ she did if he or she had known 0f the concealed or suppressed fact” in their
(7675/015/00807634DOC) l
REPLY IN SUPPORT OF DEMURRER TO COMPLAINT
Third Cause of Action. Therefore, the Third Cause of Action fails t0 state facts sufficient to
allege a claim, and Guarantee’s demurrer to the Third Cause of Action should be sustained.
#WN
II.
LAW AND ARGUMENT
A. Plaintiffs’ Third Cause of Action Fails to State Facts Sufficient t0 State a Claim.
\OOOQQUI
Plaintiffs’ Opposition asserts that its Third Cause of Action is for fraudulent
concealment, and confirms that in order t0 state a claim for fraudulent concealment, a plaintiff
must plead “(1) the concealment or suppression of a material fact; (2) by a defendant with a
10 duty to disclose the fact t0 the plaintiff; (3) the defendant intended to defraud the plaintiff by
11 intentionally concealing 0r suppressing the fact; (4) the plaintiff was unaware of the fact and
12 would not have acted as he or she did if he or she had known of the concealed 0r suppressed
13 fact; and (5) plaintiff sustained damage as a result of the concealment 01' suppression of the
14 fact.” (Bank ofAmerica Corp. v. Superior Court (201 1) 198 Cal.App.4“‘ 862, 870.) As such,
15 each 0f these elements, including the fact the plaintiff was unaware 0f the fact and would not
16 have acted as he or she did if he 0r she had known 0f the concealed or suppressed fact, is an
17 essential element 0f the claim.
18 Here, Plaintiffs’ concede that they have not alleged that Plaintiffs would not
19 have acted as they did if they had known of the concealed 0r suppressed fact. (Opp., 3:10-
20 3:11.) Thus, Plaintiffs have failed to comply with the pleading requirements and plead all
21 elements required for such a claim. Guarantee’s demurrer should be sustained.
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{7675/015/00807634DOC} 2
REPLY IN SUPPORT OF DEMURRER TO COMPLAINT
IV.
CONCLUSION
For all of the foregoing reasons, as well as those to be set forth at the hearing on
this matter, Guarantee respectfully requests that the Court sustain its Demurrer to the Third
Cause of Action of the Complaint, without leave t0 amend.
\OOOflmUl-PUJN
Dated: January 23, 201 8 WANGER JONES HELSLEY PC
Timothy ones
10 Marisa L. Balch
Attorneys for Defendant
11 GUARANTEE REAL ESTATE
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{7675/0 15/00807634DOC} 3
REPLY IN SUPPORT OF DEMURRER TO COMPLAINT
PROOF OF SERVICE
Fresno Coung Superior Court Case N0.: 17 CE CG 03536
My business address is 265 E. River Park Circle, Suite 310, Post Office Box
28340, Fresno, California 93720. I am employed in Fresno County, California. I am over the
age of 18 years and am not a party t0 this case.
KOWQQLIIAUJNr—I
On the date indicated below, I served the foregoing document(s) described as
REPLY IN SUPPORT OF DEMURRER TO COMPLAINT on all interested parties in this
action by placing a true copy thereof enclosed in sealed envelopes addressed as follows:
SEE ATTACHED SERVICE LIST
(BY MAIL) I am readily familiar with the business' practice for collection
and processing of correspondence for mailing, and that conespondence, with
postage thereon fully prepaid, will be deposited with the United States Postal
Service on the date noted below in the ordinary course 0f business, at Fresno,
California.
(BY PERSONAL SERVICE) I caused delivery 0f such envelope(s), by hand, to
the 0ffice(s) of the addressee(s).
(BY ELECTRONIC MAIL) I caused such documents to be scanned into PDF
format and sent Via electronic mail t0 the electronic mail addressee(s) of the
addressee(s) designated.
NNNNNNNNNv—lr—‘Hr—tp—ir—nb—nr—Ay—Ar—t
(BY FACSIMILE) I caused the above-referenced document to be delivered
by facsimile t0 the facsimile number(s) of the addressee(s).
X (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to
OOQONUl-PWNt—‘OOOOQGUIAUJNr—‘O
be delivered to an overnight courier service for delivery to the addressee(s).
X (STATE) I declare under penalty of perjury under the laws of the State 0f
California that the foregoing is true and correct. Executed on January 23, 2018.
{QL’VML/ IZ/CMm/Cm’u
Dena Richardson
{7675/0 15/00765 l 87.DOC}
Bridge V. Higginbotham, et a1.
Fresno Superior Court Case No. 17CECG03536
SERVICE LIST
Robert C. Abrams Attorneys for Plaintiffs
Mike Chappars Michael Ray Bridge; Sheryl D. Bridge
LAW OFFICES 0F ROBERT C. ABRAMS
\OOONQLlI-PUJNp—I
5412 North Palm Avenue, Suite #1 01
Fresno, California 93704
Ph: (559) 43 1-9710
Fax: 559-43 1—4108
E-Mail: mike@rcabramslaw.com
bob@rcabramslaw.com
Brian K. Cuttone
CUTTONE & ASSOCIATES
5380 N. Fresno Street, Suite 102
Fresno, California 937 1 0
Ph: (559) 228-8490
Fax: (559) 421—1991 Attorneys for Ken and Kathy
E-Mail: bcuttone@cuttonelaw.com Higginbotham
NNNNNNNNNHHHp—tb—Ir—Iv—Ir—tr—Ar—I
OOQONLh-bbJNF—‘OKDOOQQUIAWNHO
{7675/0 l 5/00765 1 87.DOC}
Document Filed Date
January 23, 2018
Case Filing Date
October 18, 2017
For full print and download access, please subscribe at https://www.trellis.law/.
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WANGER JONES HELSLEY PC 265 East River Park Circle, Suite 3 10 Fresno, California 93720 E-FILED Telephone: (559) 233-4800 1/23/2018 2:48 PM Facsimile: (559) 233-9330 FRESNO COUNTY SUPERIOR COURT Timothy Jones #1 19841 By: R. Faccinto, Deputy Marisa L. \oooqauugwm._. Balch #258332 Attorneys for: Defendant GUARANTEE REAL ESTATE SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO CIVIL DIVISION MICHAEL RAY BRIDGE; ' Case No. 17 CE CG 03536 SHERYL D. BRIDGE, REPLY IN SUPPORT OF Plaintiff, DEMURRER TO COMPLAINT V. Date: January 30, 2018 Time: 3:30 p.m. KEN HIGGINBOTHAM; an individual; Dept: 501 KATHY HIGGINBOTHAM, an individual; GUARANTEE REAL ESTATE, a California corporation; and DOES 1through 15, inclusive, NNNNNNNNNflHy—tr-‘r—At—Ii—I—I—Ip— Defendants. MNOMAWNHOKDOOVQU‘I-BWNHO Defendant GUARANTEE REAL ESTATE (“Guarantee”) hereby submits the following Reply in Support of itsDemurrer t0 the Third Cause of Action of the Complaint for: (1) Violation 0f Civ. Code Sections 1102 et seq.; (2) Negligence; (3) Fraud; and (4) Breach of Contract (the “Complaint”) filed herein by Plaintiffs MICHAEL RAY BRIDGE and SHERYL D. BRIDGE (“Plaintiffs”). I. INTRODUCTION Despite confirming that it is an essential element, Plaintiffs’ Opposition concedes that there is no allegation that they were “unaware 0f the fact and would not have acted as he 01‘ she did if he or she had known 0f the concealed or suppressed fact” in their (7675/015/00807634DOC) l REPLY IN SUPPORT OF DEMURRER TO COMPLAINT Third Cause of Action. Therefore, the Third Cause of Action fails t0 state facts sufficient to allege a claim, and Guarantee’s demurrer to the Third Cause of Action should be sustained. #WN II. LAW AND ARGUMENT A. Plaintiffs’ Third Cause of Action Fails to State Facts Sufficient t0 State a Claim. \OOOQQUI Plaintiffs’ Opposition asserts that its Third Cause of Action is for fraudulent concealment, and confirms that in order t0 state a claim for fraudulent concealment, a plaintiff must plead “(1) the concealment or suppression of a material fact; (2) by a defendant with a 10 duty to disclose the fact t0 the plaintiff; (3) the defendant intended to defraud the plaintiff by 11 intentionally concealing 0r suppressing the fact; (4) the plaintiff was unaware of the fact and 12 would not have acted as he or she did if he or she had known of the concealed 0r suppressed 13 fact; and (5) plaintiff sustained damage as a result of the concealment 01' suppression of the 14 fact.” (Bank ofAmerica Corp. v. Superior Court (201 1) 198 Cal.App.4“‘ 862, 870.) As such, 15 each 0f these elements, including the fact the plaintiff was unaware 0f the fact and would not 16 have acted as he or she did if he 0r she had known 0f the concealed or suppressed fact, is an 17 essential element 0f the claim. 18 Here, Plaintiffs’ concede that they have not alleged that Plaintiffs would not 19 have acted as they did if they had known of the concealed 0r suppressed fact. (Opp., 3:10- 20 3:11.) Thus, Plaintiffs have failed to comply with the pleading requirements and plead all 21 elements required for such a claim. Guarantee’s demurrer should be sustained. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// {7675/015/00807634DOC} 2 REPLY IN SUPPORT OF DEMURRER TO COMPLAINT IV. CONCLUSION For all of the foregoing reasons, as well as those to be set forth at the hearing on this matter, Guarantee respectfully requests that the Court sustain its Demurrer to the Third Cause of Action of the Complaint, without leave t0 amend. \OOOflmUl-PUJN Dated: January 23, 201 8 WANGER JONES HELSLEY PC Timothy ones 10 Marisa L. Balch Attorneys for Defendant 11 GUARANTEE REAL ESTATE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {7675/0 15/00807634DOC} 3 REPLY IN SUPPORT OF DEMURRER TO COMPLAINT PROOF OF SERVICE Fresno Coung Superior Court Case N0.: 17 CE CG 03536 My business address is 265 E. River Park Circle, Suite 310, Post Office Box 28340, Fresno, California 93720. I am employed in Fresno County, California. I am over the age of 18 years and am not a party t0 this case. KOWQQLIIAUJNr—I On the date indicated below, I served the foregoing document(s) described as REPLY IN SUPPORT OF DEMURRER TO COMPLAINT on all interested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST (BY MAIL) I am readily familiar with the business' practice for collection and processing of correspondence for mailing, and that conespondence, with postage thereon fully prepaid, will be deposited with the United States Postal Service on the date noted below in the ordinary course 0f business, at Fresno, California. (BY PERSONAL SERVICE) I caused delivery 0f such envelope(s), by hand, to the 0ffice(s) of the addressee(s). (BY ELECTRONIC MAIL) I caused such documents to be scanned into PDF format and sent Via electronic mail t0 the electronic mail addressee(s) of the addressee(s) designated. NNNNNNNNNv—lr—‘Hr—tp—ir—nb—nr—Ay—Ar—t (BY FACSIMILE) I caused the above-referenced document to be delivered by facsimile t0 the facsimile number(s) of the addressee(s). X (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to OOQONUl-PWNt—‘OOOOQGUIAUJNr—‘O be delivered to an overnight courier service for delivery to the addressee(s). X (STATE) I declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct. Executed on January 23, 2018. {QL’VML/ IZ/CMm/Cm’u Dena Richardson {7675/0 15/00765 l 87.DOC} Bridge V. Higginbotham, et a1. Fresno Superior Court Case No. 17CECG03536 SERVICE LIST Robert C. Abrams Attorneys for Plaintiffs Mike Chappars Michael Ray Bridge; Sheryl D. Bridge LAW OFFICES 0F ROBERT C. ABRAMS \OOONQLlI-PUJNp—I 5412 North Palm Avenue, Suite #1 01 Fresno, California 93704 Ph: (559) 43 1-9710 Fax: 559-43 1—4108 E-Mail: mike@rcabramslaw.com bob@rcabramslaw.com Brian K. Cuttone CUTTONE & ASSOCIATES 5380 N. Fresno Street, Suite 102 Fresno, California 937 1 0 Ph: (559) 228-8490 Fax: (559) 421—1991 Attorneys for Ken and Kathy E-Mail: bcuttone@cuttonelaw.com Higginbotham NNNNNNNNNHHHp—tb—Ir—Iv—Ir—tr—Ar—I OOQONLh-bbJNF—‘OKDOOQQUIAWNHO {7675/0 l 5/00765 1 87.DOC}