On November 19, 2018 a
Motion-Secondary
was filed
involving a dispute between
Boostcare,
Bootup Ventures, Llc,
Dial2Buy.Com, Llc,
Gaur, Tarun,
Jinigram, Llc,
Kumar, Ravi,
Tringapps Inc,
and
Dial2Buy.Com, Llc,
Does 1-20,
Gaur, Tarun,
Jinigram, Llc,
Kumar, Ravi,
Tringapps Inc,
for (06) Unlimited Breach of Contract/Warranty
in the District Court of San Mateo County.
Preview
DAVID P. NEMECEK, JR. (State Bar N0. 194402)
david@fortress-law.com
THE FORTRESS LAW FIRM, INC. FMA'iEO
I L E D
COUNTY
I
555 Califomia Street, Suite 4925 SAN
San Francisco, CA 94104 '
JUN 2 l 2019‘
Telephone: (415) 659—1946 _
Facsimile: (4 1 5) 723-73 70
Attorneys for Plaintiffs BOOTUP VENTURES, LLC
and BOOSTCARE dba BOOTUP WORLD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
KDOOQQUI
COUNTY OF SAN MATEO
UNLIMITED JURISDICTION
,_
10
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BOOTUP VENTURES, LLC and Case No. 18CIV06232 31H
BOOSTCARE dba BOOTUP WORLD, .
_
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REPLY IN SUPPORT OF DEMURRER AND kg
Plaintiffs, MOTION TO STRIKE CLAIMS FOR
13
RESTITUTION AND DAMAGES X‘dfi
v. CONTAINED IN PRAYER FOR RELIEF IN
14 TO CROSS-COMPLAINT BY CROSS-
TARUN GAUR, TRINGAPPS INC, DEFENDANTS BOOTUP VENTURES, LLC
15
JIN'IGRAM, LLC, DI'ALZBUYCOM, LLC, AND BOOSTCARE DBA BOOTUP WORLD
RAVI KUMAR aka SHAWN KUMAR and
‘
I
16 DOES 1—20, . Datei June 27, 2019
Time: 9:00 a.m.
17 Defendants. Dept: Law and Motion
18
Action Filed: November 19, 201 8
Trial Date: None
19 "5232
AND RELATED CROSS-COMPLAINT iM
18P—Ac”
in Repl
oiPoints and Authorities
2O . Maemorandum
21
[‘8
\\|\l\\\\\\\\\\\\\\|\“MN“\H“
I. INTRODUCTION
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Cross-Complainants’ opposition to Cross-Defendants’ demurrer fails toaddress the fact
23
GEWNVSS
that their Cross—Complairg fails to allege any facts to show that they suffered even $1 in
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compensable damages. To the contrary, the CroSs—Complaint alleges that they terminated the
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contract at issue, parted With nothing and walked away from it,thereby leaving themselves in the
26
same position they were before they signed the contract. The Court should sustain Cross-
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Defendants, demurrer and grant their motion to strike the prayer for relief for rescission for that
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REPLY 1N SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP
VENTURES AND BOOSTCARE DBA BOOTUP WORLD
reason.
In addition, Cross-Complainants failed t0 plead their claims for fraud with the requisite
particularity. The Cross—Complaint fails to allege the names of the persons Who made some of
the allegedly fraudulent representations, their authority t0 speak, to whom they spoke, what they
said or wrote, and When itwas said or written. It also fails t0 allege how some alleged
OOQQLA$
misrepresentations were made or Why they were false at the time they were made. In some cases
the alleged misrepresentations are too vague to be actionable. And in many cases the allegationé
0f the Cross-Complaint d0 not allege anything other than non—performance 0f the terms of the
KO
MOU.
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The Court should sustain Cross—Defendants’ demurrer and grant their motion to strike.
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II. THE COURT SHOULD SUSTAIN CROSS—DEFENDANTS’ DEMURRER
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A. THE CROSS—COMPLAINT FAILS TO ALLEGE THAT CROSS-
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COMPLAINANTS SUFFERED ANY RECOVERABLE DAMAGES
14
The flawed premise of Cross-Complainants’ fraud-based claims is that the Cross-
15 Defendants fraudulently induced them t0 enter into the Memorandum of Understanding that is
16 attachgd as Exhibit A to the Complaint. The Cross-Complainants claim that they “withdrew from
17 the MOU because 0f the Cross-defendants’ failure to perform as agreed” six months after it was
18 executed. (Cross—Compl., 1]35.)
19 The damages recoverable 0n a claim for fraud consist of the “out ofpocket” losses
20 suffered by the plaintiff. Alliance Mortgage C0. v.Rothwell (1995) 10 Cal.4‘h 1226, 1240. The
21 Cross—Complaint fails to allege that the Cross—Complainants paid anything t0 Cross—Defendants
22 or lost anYthing of value as a result 0f the allegedly wrongful actions taken by the Cross-
23 Defendanfs. To the contrary, the Cross-Complainants terminated the MOU, refused to pay the
24 shared profits that are due pursuant to the terms of the MOU and transfer the equity that Plaintiffs
25 seek by way of their Complaint. (Cross—Compl., 1m 36—37.)
26 The party breaching a contract is only liable to place the nonbreaching party in the same
27 position as if the specific breach had not occurred. Postal Instant Press v. Sealy (1996) 43
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REPLY IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP
VENTURES AND BOOSTCARE DBA BOOTUP WORLD
)
Ca1.App.4‘h 1704. The Cross—Complaint alleges that the Cross-Complainants are in the same
position as they were before they entered into the MOU. They attempted t0 terminate the
contract, walk away from their obligations and transferred nothing of value to Cross—Defendants.
The Cross-Complaint repeatedly makes the preposterous allegation that the Cross-
Complainants have suffered $1 million in damages, but the Cross-Complaint pleads n0 facts to
show that they suffered compensable damages of even $1. Cross—Defendants’ demurrer should
be sustained.
KDOOQQ
B. THE CROSS-COMPLAINT FAILS TO PLEAD FRAUD WITH
PARTICULARITY
10 Cross—Complainants do not dispute that in cases involving allegations of fraud against a
11 corporation, the plaintiff must allege “the names of the persons who made the allegedly
12 fraudulent representations, their authority t0 speak, to whom they spoke, what they said or wrote,
13 and When was said or written.” Tarmann Farm Mutual Auto
it v. State Ins. C0. (1991) 2
14 Cal.App.4‘h 153, 157. Cross—Complainants’ opposition brief completely fails t0 address the fact
15 that the Cross—Complaint fails to comply with that requirement with respect to the allegations that
16 the Cross-Defendants “represented to Cross-complainants that they had the technical expertise,
17 connections, personnel, and capabilities listed in their MoU, at section 4.1.” (Cross—Comp1., 1]
18 56.) The Cross—Complaint also fails to allege how those alleged misrepresentations were made 0r
19 why they were false at the time they were made.
20 Cross-Complainants also fail t0 address how ajury would determine whether vague
21 claims regarding the “worldwide reach” of BootUp Ventures are false, as well as the phrases that
22 BootUp had “talent and resources,” “business savvy” and “startup accelerator expertise.” These
23 allegaltions are too vague to support a claim for fraud. See California Trust C0. v. Gustason
24 (1940) 15 Cal.2d 268, 272 (alleged misrepresentations must be directly and specifically pleaded).
25 Cross-Complainants also fail address the fact that the allegations of the Cross-Complaint
26 do not allege anything other than non-performance 0f the terms of the MOU, which cannot form
27 the basis 0f a claim for fraud.
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3
REPLY 1N SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP
VENTURES AND BOOSTCARE DBA BOOTUP WORLD
Moreover, paragraph 55 of the Cross—Complaint alleges 0n information and belief that the
content 0n the website of BootUp Ventures that is described in paragraph 53 was false, but itdoes
not describe why that information is false. The cross—complaint once again fails toplead fraud
with the requisite specificity.
Cross—Complainants failed to plead their claims for fraud with the requisite particularity.
The Court should sustain this demurrer.
III.
ITHE COURT SHOULD GRANT CROSS—DEFENDANTS’ MOTION TO STRIKE
\OOOQQ
Cross—Complainants argue that their the claim for restitution in their prayer for relief is
viable because “the court may order a restitution of benefits conferred by the rescinding party and
10
also award consequential damages incurred as a result of entering into the contract (so long as the
11
award does not include a double or inconsistent recovery).” (Opp. at 9.) Cross-Complainants cite
12
several cases involving real estate transactions in which parties recovered commissions,
13
attorney’s fees and interest. 0n funds paid to the opposing party. None of those cases have any
14
applicability to this case because the Cross—Complaint alleges that Cross-Complainants paid
15
nothing of value to Cross—Defendants and they cannot recover attorney’s fees in this action, as the
16
MoU does not contain an attorney’s fees clause.
17
By their own admissions, Cross-Complainants did not transfer anything 0f value to Cross-
18
Complainants that they are entitled t0 recover in this action. The Court should grant Cross-
19
Defendants’ motion and strike the prayer for restitution in the Cross—Complaint.
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IV. CONCLUSION
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The Cross-Complaint fails to state a cause 0f action for fraud or breach of contract. The
22
claims for fraud are not alleged With the heightened specificity required for claims for fraud, and
23
the claims for breach of contract fail to allege any facts to show that the Cross—Complainants
24
suffered damages as a result of the breach. The court should sustain Cross—Defendants’ demurrer
25
and grant their motion to strike.
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REPLY IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP
VENTURES AND BOOSTCARE DBA BOOTUP WORLD
Dated: June 20, 2019
DAVID P. NEMECEK, JR.
Attorneys for Plaintiffs and Cross—Defendants BOOTUP
VENTURES, LLC and BOOSTCARE dba BOOTUP
\DOOQONUI-h
WORLD
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REPLY IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP
VENTURES AND BOOSTCARE DBA BOOTUP WORLD
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DAVID P. NEMECEK, JR. (State Bar N0. 194402) david@fortress-law.com THE FORTRESS LAW FIRM, INC. FMA'iEO I L E D COUNTY I 555 Califomia Street, Suite 4925 SAN San Francisco, CA 94104 ' JUN 2 l 2019‘ Telephone: (415) 659—1946 _ Facsimile: (4 1 5) 723-73 70 Attorneys for Plaintiffs BOOTUP VENTURES, LLC and BOOSTCARE dba BOOTUP WORLD SUPERIOR COURT OF THE STATE OF CALIFORNIA KDOOQQUI COUNTY OF SAN MATEO UNLIMITED JURISDICTION ,_ 10 11 BOOTUP VENTURES, LLC and Case No. 18CIV06232 31H BOOSTCARE dba BOOTUP WORLD, . _ 12 REPLY IN SUPPORT OF DEMURRER AND kg Plaintiffs, MOTION TO STRIKE CLAIMS FOR 13 RESTITUTION AND DAMAGES X‘dfi v. CONTAINED IN PRAYER FOR RELIEF IN 14 TO CROSS-COMPLAINT BY CROSS- TARUN GAUR, TRINGAPPS INC, DEFENDANTS BOOTUP VENTURES, LLC 15 JIN'IGRAM, LLC, DI'ALZBUYCOM, LLC, AND BOOSTCARE DBA BOOTUP WORLD RAVI KUMAR aka SHAWN KUMAR and ‘ I 16 DOES 1—20, . Datei June 27, 2019 Time: 9:00 a.m. 17 Defendants. Dept: Law and Motion 18 Action Filed: November 19, 201 8 Trial Date: None 19 "5232 AND RELATED CROSS-COMPLAINT iM 18P—Ac” in Repl oiPoints and Authorities 2O . Maemorandum 21 [‘8 \\|\l\\\\\\\\\\\\\\|\“MN“\H“ I. INTRODUCTION 22 Cross-Complainants’ opposition to Cross-Defendants’ demurrer fails toaddress the fact 23 GEWNVSS that their Cross—Complairg fails to allege any facts to show that they suffered even $1 in 24 compensable damages. To the contrary, the CroSs—Complaint alleges that they terminated the 25 contract at issue, parted With nothing and walked away from it,thereby leaving themselves in the 26 same position they were before they signed the contract. The Court should sustain Cross- 27 Defendants, demurrer and grant their motion to strike the prayer for relief for rescission for that 28 REPLY 1N SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP VENTURES AND BOOSTCARE DBA BOOTUP WORLD reason. In addition, Cross-Complainants failed t0 plead their claims for fraud with the requisite particularity. The Cross—Complaint fails to allege the names of the persons Who made some of the allegedly fraudulent representations, their authority t0 speak, to whom they spoke, what they said or wrote, and When itwas said or written. It also fails t0 allege how some alleged OOQQLA$ misrepresentations were made or Why they were false at the time they were made. In some cases the alleged misrepresentations are too vague to be actionable. And in many cases the allegationé 0f the Cross-Complaint d0 not allege anything other than non—performance 0f the terms of the KO MOU. 10 The Court should sustain Cross—Defendants’ demurrer and grant their motion to strike. 11 II. THE COURT SHOULD SUSTAIN CROSS—DEFENDANTS’ DEMURRER 12 A. THE CROSS—COMPLAINT FAILS TO ALLEGE THAT CROSS- 13 COMPLAINANTS SUFFERED ANY RECOVERABLE DAMAGES 14 The flawed premise of Cross-Complainants’ fraud-based claims is that the Cross- 15 Defendants fraudulently induced them t0 enter into the Memorandum of Understanding that is 16 attachgd as Exhibit A to the Complaint. The Cross-Complainants claim that they “withdrew from 17 the MOU because 0f the Cross-defendants’ failure to perform as agreed” six months after it was 18 executed. (Cross—Compl., 1]35.) 19 The damages recoverable 0n a claim for fraud consist of the “out ofpocket” losses 20 suffered by the plaintiff. Alliance Mortgage C0. v.Rothwell (1995) 10 Cal.4‘h 1226, 1240. The 21 Cross—Complaint fails to allege that the Cross—Complainants paid anything t0 Cross—Defendants 22 or lost anYthing of value as a result 0f the allegedly wrongful actions taken by the Cross- 23 Defendanfs. To the contrary, the Cross-Complainants terminated the MOU, refused to pay the 24 shared profits that are due pursuant to the terms of the MOU and transfer the equity that Plaintiffs 25 seek by way of their Complaint. (Cross—Compl., 1m 36—37.) 26 The party breaching a contract is only liable to place the nonbreaching party in the same 27 position as if the specific breach had not occurred. Postal Instant Press v. Sealy (1996) 43 28 2 REPLY IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP VENTURES AND BOOSTCARE DBA BOOTUP WORLD ) Ca1.App.4‘h 1704. The Cross—Complaint alleges that the Cross-Complainants are in the same position as they were before they entered into the MOU. They attempted t0 terminate the contract, walk away from their obligations and transferred nothing of value to Cross—Defendants. The Cross-Complaint repeatedly makes the preposterous allegation that the Cross- Complainants have suffered $1 million in damages, but the Cross-Complaint pleads n0 facts to show that they suffered compensable damages of even $1. Cross—Defendants’ demurrer should be sustained. KDOOQQ B. THE CROSS-COMPLAINT FAILS TO PLEAD FRAUD WITH PARTICULARITY 10 Cross—Complainants do not dispute that in cases involving allegations of fraud against a 11 corporation, the plaintiff must allege “the names of the persons who made the allegedly 12 fraudulent representations, their authority t0 speak, to whom they spoke, what they said or wrote, 13 and When was said or written.” Tarmann Farm Mutual Auto it v. State Ins. C0. (1991) 2 14 Cal.App.4‘h 153, 157. Cross—Complainants’ opposition brief completely fails t0 address the fact 15 that the Cross—Complaint fails to comply with that requirement with respect to the allegations that 16 the Cross-Defendants “represented to Cross-complainants that they had the technical expertise, 17 connections, personnel, and capabilities listed in their MoU, at section 4.1.” (Cross—Comp1., 1] 18 56.) The Cross—Complaint also fails to allege how those alleged misrepresentations were made 0r 19 why they were false at the time they were made. 20 Cross-Complainants also fail t0 address how ajury would determine whether vague 21 claims regarding the “worldwide reach” of BootUp Ventures are false, as well as the phrases that 22 BootUp had “talent and resources,” “business savvy” and “startup accelerator expertise.” These 23 allegaltions are too vague to support a claim for fraud. See California Trust C0. v. Gustason 24 (1940) 15 Cal.2d 268, 272 (alleged misrepresentations must be directly and specifically pleaded). 25 Cross-Complainants also fail address the fact that the allegations of the Cross-Complaint 26 do not allege anything other than non-performance 0f the terms of the MOU, which cannot form 27 the basis 0f a claim for fraud. 28 3 REPLY 1N SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP VENTURES AND BOOSTCARE DBA BOOTUP WORLD Moreover, paragraph 55 of the Cross—Complaint alleges 0n information and belief that the content 0n the website of BootUp Ventures that is described in paragraph 53 was false, but itdoes not describe why that information is false. The cross—complaint once again fails toplead fraud with the requisite specificity. Cross—Complainants failed to plead their claims for fraud with the requisite particularity. The Court should sustain this demurrer. III. ITHE COURT SHOULD GRANT CROSS—DEFENDANTS’ MOTION TO STRIKE \OOOQQ Cross—Complainants argue that their the claim for restitution in their prayer for relief is viable because “the court may order a restitution of benefits conferred by the rescinding party and 10 also award consequential damages incurred as a result of entering into the contract (so long as the 11 award does not include a double or inconsistent recovery).” (Opp. at 9.) Cross-Complainants cite 12 several cases involving real estate transactions in which parties recovered commissions, 13 attorney’s fees and interest. 0n funds paid to the opposing party. None of those cases have any 14 applicability to this case because the Cross—Complaint alleges that Cross-Complainants paid 15 nothing of value to Cross—Defendants and they cannot recover attorney’s fees in this action, as the 16 MoU does not contain an attorney’s fees clause. 17 By their own admissions, Cross-Complainants did not transfer anything 0f value to Cross- 18 Complainants that they are entitled t0 recover in this action. The Court should grant Cross- 19 Defendants’ motion and strike the prayer for restitution in the Cross—Complaint. 20 IV. CONCLUSION 21 The Cross-Complaint fails to state a cause 0f action for fraud or breach of contract. The 22 claims for fraud are not alleged With the heightened specificity required for claims for fraud, and 23 the claims for breach of contract fail to allege any facts to show that the Cross—Complainants 24 suffered damages as a result of the breach. The court should sustain Cross—Defendants’ demurrer 25 and grant their motion to strike. 26 27 28 4 REPLY IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP VENTURES AND BOOSTCARE DBA BOOTUP WORLD Dated: June 20, 2019 DAVID P. NEMECEK, JR. Attorneys for Plaintiffs and Cross—Defendants BOOTUP VENTURES, LLC and BOOSTCARE dba BOOTUP \DOOQONUI-h WORLD 10 11 12 13 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 5 REPLY IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY CROSS-DEFENDANTS BOOTUP VENTURES AND BOOSTCARE DBA BOOTUP WORLD