Preview
01/29/2021
1 SINCLAIR WILSON
BALDO & CHAMBERLAIN
2 ROBERT F. SINCLAIR (SBN-79193)
2390 Professional Drive
3 Roseville, CA 95661
Telephone: (916) 783-5281
4 Facsimile: (916) 783-5232
5 Attorneys for Defendant,
PLACER VALLEY SPORTS COMPLEX,
6 INC., dba @the Grounds
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF PLACER
10
11 SHERRY LARSEN, individually and dba CASE NO. S-CV-0045659
CALIFORNIA STATE ENTERPRISES,
12 RELPY MEMORANDUM IN SUPPORT
Plaintiff, OF DEMURRER TO PLAINTIFF'S
13 COMPLAINT
V.
14 Date: February 5, 2021
PLACER VALLEY SPORTS COMPLEX, Time: 8:30 a.m.
15 INC. dba @the Grounds, a California Dept: 3
corporation; and DOES 1-10, inclusive,
16
Defendants.
17
18 AND RELATED CROSS-ACTION
19
2o Defendant, PLACER VALLEY SPORTS COMPLEX, INC. dba @the Grounds, a
21 California corporation ("defendant"), submits the following reply memorandum in
22
support of its demurrer to the second, third, fourth, and fifth causes of action of
23 plaintiff's complaint.
24 ///
25 ///
-1-
Reply Memorandum in Support of Demurrer to Plaintiff's Complaint
1 I.
2 THE SECOND CAUSE OF ACTION PURPORTING TO
ALLEGE PROMISSORY ESTOPPEL IS DEFECTIVE
3
4 A. BY INCORPORATING THE INTRODUCTORY ALLEGATIONS AND THE
FIRST CAUSE OF ACTION, THE SECOND CAUSE OF ACTION ALLEGES
5 CONSIDERATION THEREBY DEFEATING THE CLAIM.
6 In opposition to defendant's demurrer to the second cause of action plaintiff
7 concedes by silence a party cannot successfully plead a claim for promissory estoppel
8 that is premised upon a promise given in exchange for consideration. To overcome this
9 defect, plaintiff contends her first and second causes of action are separate, pleaded in
10 the alternative, which she may do, and thus the existence of one does not preclude the
11 other. The problem with this approach is that plaintiff incorporates all previous
12 allegations in the complaint into the second cause of action (see, e. g. Complaint, '1[22)
13 and, by doing so, within the cause of action for promissory estoppel pleads the existence
14 of the contract, its included promise, and its consideration. Because within the cause of
15 action purporting to plead promissory estoppel plaintiff pleads the promise she seeks to
16 enforce was made in a contract supported by consideration/ as a matter of law
17 promissory estoppel cannot be found. For this reason, the second cause of action is
18 fatally defective.
19 B. THE CAUSE OF ACTION FOR PROMISSORY ESTOPPEL DOES NOT
ALLEGE A PROMISE WITH SUFFICIENT SPECIFITY TO BE ENFORCED.
20
21 A claim for promissory estoppel must specifically plead the promise as it was
22 made and the promise must be clear and unambiguous in its terms. (Jones v. Wachovia
23
24 The contractual promise supported by consideration and the promise upon which the
promissory estoppel cause of action is based are identical, as is easily observed by comparing
25 paragraphs 7 and 16 of the complaint.
-2-
Reply Memorandum in Support of Demurrer to Plaintiff's Complaint
1 Bank (2014) 230 Cal.App.4th 935, 945.) Moreover, any reliance on a promise must be
2 reasonable and foreseeable. (Ibid.)
3 Here, plaintiff pleads "[ d]efendants represented to Plaintiff that Plaintiff had the
4 right to schedule two Home & Garden shows per year at the Placer County Fairgrounds
5 between 2000 and 2025." (Comp. 'J[23.)
6 The sufficiency of a pleaded promise to support a claim of promissory may be
7 considered on demurrer. (See, e.g., Laks v. Coast Federal Savings and Loan Association
8 (1976) 60 Cal.App.3d 885, 890-891.) Reasonably construed, a statement of the nature
9 attributed to defendant and quoted above omitted important and substantive details.
10 On its face, as a result of what it omits regarding details of use of the facility, the alleged
11 promise is too uncertain to be relied upon or enforced.
12 Plaintiff argues the court must accept her allegations as true. (Opp.
13 Memorandum, p. 6:18-22.) True enough on demurrer. But the argument misses the
14 point of defendant's demurrer, which is this: even if accepted as true the allegations do
15 not show a promise of sufficient certainty in its terms to be enforceable pursuant to a
16 promissory estoppel claim.
17 III.
18 THE THIRD CAUSE OF ACTION FOR DECLARATORY RELIEF
FAILS TO PLEAD SUFFICIENT DETAIL AS TO
19 THE CLAIM UPON WHICH ADJUDICATION IS SOUGHT
20 Plaintiff argues the bar applicable to a declaratory relief action is low. Perhaps
21 so, but nevertheless she fails to clear it.
22 A cause of action for declaratory relief must plead with specificity the existence
23 of an actual controversy. (Frederick v. North Side Water Company of Walnut,
24 California (1942) 49 Cal.App.2d 489, 491 ["the specific claims made must be set forth
25 together with the ultimate facts to sustain them"]; American Mission Army, Inc. v. City
-3-
Reply Memorandum in Support of Demurrer to Plaintiff's Complaint
1 of Lynwood (1956) 138 Cal.App.2d 817, 819 [general allegation of a controversy is
2 insufficient; facts must be set forth].)
3 Plaintiff's third cause of action alleges a controversy, but fails to state which of
4 the many factual allegations she pleads is believed to be disputed and upon which the
5 court is requested to declare. By way of example, in paragraph 12 of her complaint she
6 alleges her deposit should have been applied to future event dates. In paragraph 13 she
7 contends defendant refused to recognize the pandemic and orders triggered the force
8 majeure clause. Later in that same paragraph plaintiff argues defendant urged her to
9 mislead other government personnel regarding the nature of her event. Still further in
10 paragraph 13, she states these events caused defendant's representative to threaten to
11 cancel the License Agreement. And after that she states defendant did indeed cancel her
12 contract. But which of these facts does plaintiff contend are disputed and, as such, the
13 court should weigh in on? Because plaintiff does not say, it should be concluded her
14 third cause of action lacks sufficient certainty and the demurrer should be sustained.
15 IV.
16 THE FOURTH CAUSE OF ACTION IS DEFECTIVE BECAUSE SPECIFIC
PERFORMANCE IS A REMEDY AND NOT A WRONG
17
18 Injunctive relief is a remedy. (See, 5 Witkin, Cal. Proc. (5"' ed, 2008) Pleadings
19 §825, p. 241-242; and cases cited therein.) Although it incorporates all prior allegations
20 of the complaint (see, Comp. '1[36), plaintiff does not identify the basis for the claim of
21 fault underlying the injunctive relief request other than to state plaintiff seeks relief " ...
22 based on Defendant's improper cancellation of Plaintiff's right to hold two [home
23 shows] per year .... " This sounds like the start of a claim for breach of contract but,
24 unfortunately, the cause of action stops there. And while a court does look to the
25 gravamen of a claim to understand what is sought, to defendant's observations the
-4-
Reply Memorandum in Support of Demurrer to Plaintiff's Complaint
1 gravamen of the fourth cause of action is a request for injunctive relief without a
2 reasonable expression of the wrongful conduct giving rise to that form of relief. Plaintiff
3 should be required to re-plead to specifically allege the facts giving rise to the relief she
4 seeks.
6 THE FIFTH CAUSE OF ACTION DOES NOT ALLEGE A
RECOVERABLE HARM AND IS DEFECTIVE FOR THAT REASON
7
8 Plaintiff's fifth cause of action for unfair business practices does not allege a right
9 to injunctive relief or restitution, which are the only permitted remedies a private party
10 may pursue under the claim. (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389,
11 1401 [interpreting Bus. & Prof. Code §17535]; Bank of the West v. Superior Court (1992)
12 2 Cal.4 th 1254, 1266 [interpreting Bus. & Prof. Code §17203; People v. Superior Court
13 /Tayhill Corp.) (1973) 9 Cal.3d 283, 287 [exemplary damages unavailable to all
14 plaintiffs].) By failing to allege a harm for which there is a permitted remedy, plaintiff
15 omits the final element of a cause of action under that statute. In the world of sports,
16 the situation is frequently express as follows: No harm; no foul. Stated in more legal
17 terms, plaintiff's failure to allege an actionable harm renders the cause of action subject
18 to demurrer.
19 Plaintiff attempts to equate its omission to plead a harm warranting a remedy
20 under the unfair competition statute with a different situation in which a valid cause of
21 action is alleged but also includes additional damages, such as exemplary damages, that
22 are not allowed. But here defendant is not seeking to remove from an otherwise valid and
23 Ill
24 Ill
25 Ill
-5-
Reply Memorandum in Support of Demurrer to Plaintiff's Complaint
l complete cause of action only an improper remedy, as might be done by motion to strike.'
2 Instead, defendant contends the failure to allege any proper remedy whatsoever means
3 plaintiff has not pleaded a recoverable harm, and the omission to plead any recoverable
4 harm results in an incomplete and defective cause of action.
5 Plaintiff attempts to navigate around this defect by pointing to its prayer, where
6 injunctive relief is sought. While true plaintiff does insert a request for injunctive relief
7 in the prayer, she does not link the relief requested in the prayer to the fifth cause of
8 action. More importantly, in paragraph 39 of the complaint, which is the last paragraph
9 within the fifth cause of action, she very specifically pleads her harm and limits the
10 allegations to claims for injuries compensable by monetary damages and exemplary
11 damages; injuries and recoveries not allowed her under the unfair competition law.
12 IV.
13 CONCLUSION
14 Plaintiff's second cause of action pleads that the promise upon which the
15 estoppel cause of action is based was supported by consideration. This cause of action
16 also presents a purported promise too vague to be relied upon or enforced. For these
17 reasons defendant's demurrer to it should be sustained.
18 Plaintiff's third cause of action does not plead with adequate specificity the
19 disputes upon which she seeks declaratory relief, making defendant's demurrer to it
20 properly presented.
21
22
23 2 In the context of a motion to strike, if successful, the otherwise complete cause of action
minus the improper remedy would not be subject to demurrer. Here, because plaintiff's
24 remedies of compensatory damages and exemplary relief are the only damages sought, the fact
they are not statutorily available to the plaintiff results in a cause of action missing an essential
25 element and therefore subject to demurrer.
-6-
Reply Memorandum in Support of Demurrer to Plaintiff's Complaint
1 Plaintiff's fourth cause of action alleges a remedy, not a wrongful conduct claim,
2 and because a remedy is not a cause of action defendant's demurrer to it should be also
3 be sustained.
4 Finally, plaintiff's fifth cause of action fails to allege any recoverable harm,
5 causing the claim to be defective in its failure to allege a necessary element.
6 For all of these reasons, defendant's demurrers to the second, third, fourth and
7 fifth causes of action of plaintiff's complaint should be sustained.
8
9 Dated: January 28, 2021 Respectfully submitted,
10 SINCLAIR WILSON
BALDO & C AMBERLAIN
11
12 By:
13
Attorney for Defendant
14
15
16
17
19
20
21
22
23
24
25
-7-
Reply Memorandum in Support of Demurrer to Plaintiff's Complaint
1 Larsen v. Placer Valley Sports Complex, Inc., et al.
Placer Coun Su erior Court Case No. SCV-0045659
2
PROOF OF SERVICE
3
I am a resident of the United States and of the State of California. I am employed in the
4
County of Placer. My business address is Sinclair Wilson Baldo & Chamberlain, 2390
Professional Drive, Roseville, California, 95661. I am over the age of eighteen (18) and not a party
5
to the within-entitled action. On January 29, 2021, I served the following document(s):
6
REPLY MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF'S
COMPLAINT
7
[ l MAIL -- By placing, or causing to be placed, a true copy of the document(s) listed above in a sealed
8
envelope with postage thereon fully prepaid, first-class mail, in the United States mail at Roseville,
California, addressed as set forth herein. (CCP §1012, 1013 and 1013(a).) I am familiar with the
9 practice of Sinclair Wilson Baldo & Chamberlain for the collection and processing of
correspondence for mailing with the United States Postal Service. In accordance with the ordinary
10 course of business, the above-mentioned document(s) would have been deposited with the United
States Postal Service on the date set forth above.
11 PERSONAL SERVICE -- By personally delivering, or causing to be delivered, the document(s)
[ l
listed above to the person(s) and at the address(es) set forth below. (1) For a party represented by
12 an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents
in an envelope or package, which was clearly labeled to identify the attorney being served, with a
13 receptionist or an individual in charge of the office, between the hours of 9:00 a.m. and 5:00 p.m.
(2) for a party, delivery was made to the party or by leaving the documents at the party's residence
14 or business address with some person not younger than 18 years of age between the hours of 8:00
a.m. and 6:00 p.m. (CCP §1011.)
15 [X] OVERNIGHT DELIVERY - I enclosed the document(s) listed above in an envelope or package
provided by an overnight delivery carrier and addressed to the person(s) at the address(es)
16 referenced herein. The envelope or package was placed for collection and overnight delivery at an
office or a regularly utilized drop box of the overnight delivery carrier.
17
[ l FACSIMILE -- By causing a true copy of the document(s) listed above to be transmitted by
facsimile, to the facsimile telephone number listed adjacent to the name(s) referenced herein; and
18 that the facsimile machine provided confirmation that the facsimile has been sent correctly. A copy
of the transmission report shall be attached to this proof of service and kept with the file.
19
[ l BY ELECTRONIC MAIL ("E-Mail") - By transmitting, between the hours of 8:30 a.m. and 5:00 p.m.
20 PDT, from E-Mail address vcanales@swbc-law.com, the document(s) listed above, to the following
addresses( s):
21
ALEX N. NEWSUM
McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
22 7647 N. Fresno Street
Fresno, CA 93720
23 Telephone: (559) 433-1300
Facsimile: (559) 433-2300
24 Email: alex.newsum@mccormickbarstow.com
Attorney for Plaintiff Sherry Larsen, individually and dba California State Enterprises
25
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on January 29, 2021, at ille, California.
'
VICKI L. CANALES
Preview
01/29/2021 1 SINCLAIR WILSON BALDO & CHAMBERLAIN 2 ROBERT F. SINCLAIR (SBN-79193) 2390 Professional Drive 3 Roseville, CA 95661 Telephone: (916) 783-5281 4 Facsimile: (916) 783-5232 5 Attorneys for Defendant, PLACER VALLEY SPORTS COMPLEX, 6 INC., dba @the Grounds 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF PLACER 10 11 SHERRY LARSEN, individually and dba CASE NO. S-CV-0045659 CALIFORNIA STATE ENTERPRISES, 12 RELPY MEMORANDUM IN SUPPORT Plaintiff, OF DEMURRER TO PLAINTIFF'S 13 COMPLAINT V. 14 Date: February 5, 2021 PLACER VALLEY SPORTS COMPLEX, Time: 8:30 a.m. 15 INC. dba @the Grounds, a California Dept: 3 corporation; and DOES 1-10, inclusive, 16 Defendants. 17 18 AND RELATED CROSS-ACTION 19 2o Defendant, PLACER VALLEY SPORTS COMPLEX, INC. dba @the Grounds, a 21 California corporation ("defendant"), submits the following reply memorandum in 22 support of its demurrer to the second, third, fourth, and fifth causes of action of 23 plaintiff's complaint. 24 /// 25 /// -1- Reply Memorandum in Support of Demurrer to Plaintiff's Complaint 1 I. 2 THE SECOND CAUSE OF ACTION PURPORTING TO ALLEGE PROMISSORY ESTOPPEL IS DEFECTIVE 3 4 A. BY INCORPORATING THE INTRODUCTORY ALLEGATIONS AND THE FIRST CAUSE OF ACTION, THE SECOND CAUSE OF ACTION ALLEGES 5 CONSIDERATION THEREBY DEFEATING THE CLAIM. 6 In opposition to defendant's demurrer to the second cause of action plaintiff 7 concedes by silence a party cannot successfully plead a claim for promissory estoppel 8 that is premised upon a promise given in exchange for consideration. To overcome this 9 defect, plaintiff contends her first and second causes of action are separate, pleaded in 10 the alternative, which she may do, and thus the existence of one does not preclude the 11 other. The problem with this approach is that plaintiff incorporates all previous 12 allegations in the complaint into the second cause of action (see, e. g. Complaint, '1[22) 13 and, by doing so, within the cause of action for promissory estoppel pleads the existence 14 of the contract, its included promise, and its consideration. Because within the cause of 15 action purporting to plead promissory estoppel plaintiff pleads the promise she seeks to 16 enforce was made in a contract supported by consideration/ as a matter of law 17 promissory estoppel cannot be found. For this reason, the second cause of action is 18 fatally defective. 19 B. THE CAUSE OF ACTION FOR PROMISSORY ESTOPPEL DOES NOT ALLEGE A PROMISE WITH SUFFICIENT SPECIFITY TO BE ENFORCED. 20 21 A claim for promissory estoppel must specifically plead the promise as it was 22 made and the promise must be clear and unambiguous in its terms. (Jones v. Wachovia 23 24 The contractual promise supported by consideration and the promise upon which the promissory estoppel cause of action is based are identical, as is easily observed by comparing 25 paragraphs 7 and 16 of the complaint. -2- Reply Memorandum in Support of Demurrer to Plaintiff's Complaint 1 Bank (2014) 230 Cal.App.4th 935, 945.) Moreover, any reliance on a promise must be 2 reasonable and foreseeable. (Ibid.) 3 Here, plaintiff pleads "[ d]efendants represented to Plaintiff that Plaintiff had the 4 right to schedule two Home & Garden shows per year at the Placer County Fairgrounds 5 between 2000 and 2025." (Comp. 'J[23.) 6 The sufficiency of a pleaded promise to support a claim of promissory may be 7 considered on demurrer. (See, e.g., Laks v. Coast Federal Savings and Loan Association 8 (1976) 60 Cal.App.3d 885, 890-891.) Reasonably construed, a statement of the nature 9 attributed to defendant and quoted above omitted important and substantive details. 10 On its face, as a result of what it omits regarding details of use of the facility, the alleged 11 promise is too uncertain to be relied upon or enforced. 12 Plaintiff argues the court must accept her allegations as true. (Opp. 13 Memorandum, p. 6:18-22.) True enough on demurrer. But the argument misses the 14 point of defendant's demurrer, which is this: even if accepted as true the allegations do 15 not show a promise of sufficient certainty in its terms to be enforceable pursuant to a 16 promissory estoppel claim. 17 III. 18 THE THIRD CAUSE OF ACTION FOR DECLARATORY RELIEF FAILS TO PLEAD SUFFICIENT DETAIL AS TO 19 THE CLAIM UPON WHICH ADJUDICATION IS SOUGHT 20 Plaintiff argues the bar applicable to a declaratory relief action is low. Perhaps 21 so, but nevertheless she fails to clear it. 22 A cause of action for declaratory relief must plead with specificity the existence 23 of an actual controversy. (Frederick v. North Side Water Company of Walnut, 24 California (1942) 49 Cal.App.2d 489, 491 ["the specific claims made must be set forth 25 together with the ultimate facts to sustain them"]; American Mission Army, Inc. v. City -3- Reply Memorandum in Support of Demurrer to Plaintiff's Complaint 1 of Lynwood (1956) 138 Cal.App.2d 817, 819 [general allegation of a controversy is 2 insufficient; facts must be set forth].) 3 Plaintiff's third cause of action alleges a controversy, but fails to state which of 4 the many factual allegations she pleads is believed to be disputed and upon which the 5 court is requested to declare. By way of example, in paragraph 12 of her complaint she 6 alleges her deposit should have been applied to future event dates. In paragraph 13 she 7 contends defendant refused to recognize the pandemic and orders triggered the force 8 majeure clause. Later in that same paragraph plaintiff argues defendant urged her to 9 mislead other government personnel regarding the nature of her event. Still further in 10 paragraph 13, she states these events caused defendant's representative to threaten to 11 cancel the License Agreement. And after that she states defendant did indeed cancel her 12 contract. But which of these facts does plaintiff contend are disputed and, as such, the 13 court should weigh in on? Because plaintiff does not say, it should be concluded her 14 third cause of action lacks sufficient certainty and the demurrer should be sustained. 15 IV. 16 THE FOURTH CAUSE OF ACTION IS DEFECTIVE BECAUSE SPECIFIC PERFORMANCE IS A REMEDY AND NOT A WRONG 17 18 Injunctive relief is a remedy. (See, 5 Witkin, Cal. Proc. (5"' ed, 2008) Pleadings 19 §825, p. 241-242; and cases cited therein.) Although it incorporates all prior allegations 20 of the complaint (see, Comp. '1[36), plaintiff does not identify the basis for the claim of 21 fault underlying the injunctive relief request other than to state plaintiff seeks relief " ... 22 based on Defendant's improper cancellation of Plaintiff's right to hold two [home 23 shows] per year .... " This sounds like the start of a claim for breach of contract but, 24 unfortunately, the cause of action stops there. And while a court does look to the 25 gravamen of a claim to understand what is sought, to defendant's observations the -4- Reply Memorandum in Support of Demurrer to Plaintiff's Complaint 1 gravamen of the fourth cause of action is a request for injunctive relief without a 2 reasonable expression of the wrongful conduct giving rise to that form of relief. Plaintiff 3 should be required to re-plead to specifically allege the facts giving rise to the relief she 4 seeks. 6 THE FIFTH CAUSE OF ACTION DOES NOT ALLEGE A RECOVERABLE HARM AND IS DEFECTIVE FOR THAT REASON 7 8 Plaintiff's fifth cause of action for unfair business practices does not allege a right 9 to injunctive relief or restitution, which are the only permitted remedies a private party 10 may pursue under the claim. (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 11 1401 [interpreting Bus. & Prof. Code §17535]; Bank of the West v. Superior Court (1992) 12 2 Cal.4 th 1254, 1266 [interpreting Bus. & Prof. Code §17203; People v. Superior Court 13 /Tayhill Corp.) (1973) 9 Cal.3d 283, 287 [exemplary damages unavailable to all 14 plaintiffs].) By failing to allege a harm for which there is a permitted remedy, plaintiff 15 omits the final element of a cause of action under that statute. In the world of sports, 16 the situation is frequently express as follows: No harm; no foul. Stated in more legal 17 terms, plaintiff's failure to allege an actionable harm renders the cause of action subject 18 to demurrer. 19 Plaintiff attempts to equate its omission to plead a harm warranting a remedy 20 under the unfair competition statute with a different situation in which a valid cause of 21 action is alleged but also includes additional damages, such as exemplary damages, that 22 are not allowed. But here defendant is not seeking to remove from an otherwise valid and 23 Ill 24 Ill 25 Ill -5- Reply Memorandum in Support of Demurrer to Plaintiff's Complaint l complete cause of action only an improper remedy, as might be done by motion to strike.' 2 Instead, defendant contends the failure to allege any proper remedy whatsoever means 3 plaintiff has not pleaded a recoverable harm, and the omission to plead any recoverable 4 harm results in an incomplete and defective cause of action. 5 Plaintiff attempts to navigate around this defect by pointing to its prayer, where 6 injunctive relief is sought. While true plaintiff does insert a request for injunctive relief 7 in the prayer, she does not link the relief requested in the prayer to the fifth cause of 8 action. More importantly, in paragraph 39 of the complaint, which is the last paragraph 9 within the fifth cause of action, she very specifically pleads her harm and limits the 10 allegations to claims for injuries compensable by monetary damages and exemplary 11 damages; injuries and recoveries not allowed her under the unfair competition law. 12 IV. 13 CONCLUSION 14 Plaintiff's second cause of action pleads that the promise upon which the 15 estoppel cause of action is based was supported by consideration. This cause of action 16 also presents a purported promise too vague to be relied upon or enforced. For these 17 reasons defendant's demurrer to it should be sustained. 18 Plaintiff's third cause of action does not plead with adequate specificity the 19 disputes upon which she seeks declaratory relief, making defendant's demurrer to it 20 properly presented. 21 22 23 2 In the context of a motion to strike, if successful, the otherwise complete cause of action minus the improper remedy would not be subject to demurrer. Here, because plaintiff's 24 remedies of compensatory damages and exemplary relief are the only damages sought, the fact they are not statutorily available to the plaintiff results in a cause of action missing an essential 25 element and therefore subject to demurrer. -6- Reply Memorandum in Support of Demurrer to Plaintiff's Complaint 1 Plaintiff's fourth cause of action alleges a remedy, not a wrongful conduct claim, 2 and because a remedy is not a cause of action defendant's demurrer to it should be also 3 be sustained. 4 Finally, plaintiff's fifth cause of action fails to allege any recoverable harm, 5 causing the claim to be defective in its failure to allege a necessary element. 6 For all of these reasons, defendant's demurrers to the second, third, fourth and 7 fifth causes of action of plaintiff's complaint should be sustained. 8 9 Dated: January 28, 2021 Respectfully submitted, 10 SINCLAIR WILSON BALDO & C AMBERLAIN 11 12 By: 13 Attorney for Defendant 14 15 16 17 19 20 21 22 23 24 25 -7- Reply Memorandum in Support of Demurrer to Plaintiff's Complaint 1 Larsen v. Placer Valley Sports Complex, Inc., et al. Placer Coun Su erior Court Case No. SCV-0045659 2 PROOF OF SERVICE 3 I am a resident of the United States and of the State of California. I am employed in the 4 County of Placer. My business address is Sinclair Wilson Baldo & Chamberlain, 2390 Professional Drive, Roseville, California, 95661. I am over the age of eighteen (18) and not a party 5 to the within-entitled action. On January 29, 2021, I served the following document(s): 6 REPLY MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT 7 [ l MAIL -- By placing, or causing to be placed, a true copy of the document(s) listed above in a sealed 8 envelope with postage thereon fully prepaid, first-class mail, in the United States mail at Roseville, California, addressed as set forth herein. (CCP §1012, 1013 and 1013(a).) I am familiar with the 9 practice of Sinclair Wilson Baldo & Chamberlain for the collection and processing of correspondence for mailing with the United States Postal Service. In accordance with the ordinary 10 course of business, the above-mentioned document(s) would have been deposited with the United States Postal Service on the date set forth above. 11 PERSONAL SERVICE -- By personally delivering, or causing to be delivered, the document(s) [ l listed above to the person(s) and at the address(es) set forth below. (1) For a party represented by 12 an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package, which was clearly labeled to identify the attorney being served, with a 13 receptionist or an individual in charge of the office, between the hours of 9:00 a.m. and 5:00 p.m. (2) for a party, delivery was made to the party or by leaving the documents at the party's residence 14 or business address with some person not younger than 18 years of age between the hours of 8:00 a.m. and 6:00 p.m. (CCP §1011.) 15 [X] OVERNIGHT DELIVERY - I enclosed the document(s) listed above in an envelope or package provided by an overnight delivery carrier and addressed to the person(s) at the address(es) 16 referenced herein. The envelope or package was placed for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 17 [ l FACSIMILE -- By causing a true copy of the document(s) listed above to be transmitted by facsimile, to the facsimile telephone number listed adjacent to the name(s) referenced herein; and 18 that the facsimile machine provided confirmation that the facsimile has been sent correctly. A copy of the transmission report shall be attached to this proof of service and kept with the file. 19 [ l BY ELECTRONIC MAIL ("E-Mail") - By transmitting, between the hours of 8:30 a.m. and 5:00 p.m. 20 PDT, from E-Mail address vcanales@swbc-law.com, the document(s) listed above, to the following addresses( s): 21 ALEX N. NEWSUM McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 22 7647 N. Fresno Street Fresno, CA 93720 23 Telephone: (559) 433-1300 Facsimile: (559) 433-2300 24 Email: alex.newsum@mccormickbarstow.com Attorney for Plaintiff Sherry Larsen, individually and dba California State Enterprises 25 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 29, 2021, at ille, California. ' VICKI L. CANALES