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1 Ian A. Rambarran, Bar No. 227366
W. Jason Scott, Bar No. 222204
2 KLINEDINST PC
801 K Street, Suite 2100 10/26/2020
3 Sacramento, California 95814
(916) 444-7573/FAX (916) 444-7544
4 irambarran@klinedinstlaw.com
jscott@klinedinstlaw.com
5
Attorneys for Defendant GREYHOUND LINES,
6 INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF BUTTE
10
11 GEORGE BOUTROS, Case No. 20CV01788
SACRAMENTO, CALIFORNIA 95814
12 Plaintiff, DEFENDANT'S MEMORANDUM OF
801 K STREET, SUITE 2100
POINTS AND AUTHORITIES IN
13 v. SUPPORT OF DEMURRER TO
KLINEDINST PC
PLAINTIFF'S COMPLAINT
14 GREYHOUND,
15 Defendant. Date: December 16, 2020
Time: 9 a.m.
16 Dept.: 1
Assigned for All Purposes to:
17 Judge: Hon. Tamara L. Mosbarger
Dept.: 1
18
19 I. INTRODUCTION
20 Defendant Greyhound (“Greyhound”) presents this Demurrer to the Complaint pursuant to
21 Code of Civil Procedure section 430.10, subdivisions (e) and (f). The Complaint identifies named
22 Plaintiff, Dr. George Boutros, and attempts to set forth five causes of action titled Assault with
23 Intent to Cause Bodily Harm, Discrimination, Fraud, Intentional Cause of Pain and Suffering, and
24 Punitive Damages. Plaintiff clearly fails to provide facts sufficient to state any valid claims against
25 Greyhound. Further, the facts that are provided by Plaintiff are presented in a vague and
26 ambiguous manner, preventing Greyhound from ascertaining the legal authority upon which
27 Plaintiff's claims are asserted, and preventing Greyhound from being able to provide a meaningful
28 response. Accordingly, Defendant Greyhound urges this Court to sustain its Demurrer to
1
DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
PLAINTIFF'S COMPLAINT
1 Plaintiff’s Complaint.
2 II. LEGAL STANDARD FOR DEMURRER
3 Code of Civil Procedure section 430.10 provides in pertinent part:
4 The party against whom a complaint or cross-complaint has been filed may object,
by demurrer or answer . . . to the pleading on any one or more of the following
5 grounds
...
6 (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
7 ambiguous and unintelligible.
8 A demurrer to the complaint may be taken to the whole complaint or to any causes of
9 action stated therein. (Code Civ. Proc. § 430.50.)
10 A general demurrer lies when “the pleading does not state facts sufficient to constitute a
11 cause of action.” (Code Civ. Proc. § 430.30, subd. (a); 430.10(e).) The function of the demurrer is
SACRAMENTO, CALIFORNIA 95814
12 to test the sufficiency of the pleading as a matter of law. (Boyle v. City of Redondo Beach (1999)
801 K STREET, SUITE 2100
13 70 Cal.App.4th 1109, 1114, fn. 2.) All properly pled allegations of the complaint, but not
KLINEDINST PC
14 contentions, deductions or conclusions of fact or law, are treated as truthful in scrutinizing the
15 complaint. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829 [emphasis
16 added].) Moreover, a demurrer is proper where a complaint fails to state a cause of action or where
17 it discloses a defense which would bar recovery. (Johnson v. Superior Court 25 (1994)
18 Cal.App.4th 1564, 1567.) Moreover, “[a]ny liberal construction favoring the plaintiff must be
19 tempered with a recognition that the defendant should not be required to respond to allegations so
20 vague, ambiguous or inconsistent as to make a meaningful response impossible.” (1 Cal.
21 Affirmative Def. § 10:1 (2005 Ed.) [emphasis added].) In that regard, any doubt in the complaint
22 may be resolved against a plaintiff and facts that are not alleged are presumed not to exist. (C & H
23 Foods co. v. Hartford Ins. Co., 163 Cal.App.3d 1055, 1062 (1984) [Emphasis added].) In
24 determining the sufficiency of a pleading against a demurrer, the court must look exclusively to
25 facts alleged in the pleadings and matters that may be proven by judicial notice. (Blank v. Kirwan
26 (1985) 39 Cal.3d 311, 318.)
27 As set forth below, Plaintiff’s Complaint fails to state facts sufficient to constitute a single
28 cause of action against Greyhound. Furthermore, the allegations in Plaintiff’s Complaint are
2
DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
PLAINTIFF'S COMPLAINT
1 impermissibly vague, ambiguous and uncertain as to make it impossible for Greyhound to provide
2 a meaningful response. Therefore, based upon the arguments contained herein, Defendant
3 respectfully requests that the Court sustain this demurrer.
4 III. ARGUMENT
5 While California pleading requirements are liberal, a complaint must at a minimum
6 “apprise the adversary of the factual basis of the claim,” Estate of Archer (1987) 193 Cal.App.3d
7 238, 245, and “set forth facts constituting [a valid] cause of action, in ordinary and concise
8 language.” Code Civ. Proc. § 425.10(a). Plaintiff’s complaint fails to provide Greyhound with the
9 factual basis for any claim alleged.
10 A. Each of Plaintiff’s Claims Fail to State a Valid Cause of Action.
11 1. Plaintiff fails to state a valid cause of action for assault.
SACRAMENTO, CALIFORNIA 95814
12 Plaintiff’s first cause of action is titled “Assault with Intent to Cause Bodily Harm.” While
801 K STREET, SUITE 2100
13 assault with intent to cause bodily harm is not the title of a recognized cause of action, it is likely
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14 Plaintiff intended to pursue a cause of action for assault. In general, a cause of action for assault
15 requires a plaintiff to show (1) the defendant acted with intent to cause harmful or offensive
16 contact, (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive
17 manner, (3) the plaintiff did not consent to the defendant’s conduct, (4) the plaintiff was harmed,
18 and (5) the defendant’s conduct caused the plaintiffs harm. (Carlsen v. Koivumaki (2014) 227
19 Cal.App.4th 879, 890 [citing So v. Shin (2013) 212 Cal.App.4th 652, 668-669].) A cause of action
20 for assault further requires anticipation or apprehension of immediate harm on the part of the
21 plaintiff. (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3rd 2, 232; Plotnik
22 v. Meihaus (2012) 208 Cal.App.4th 1590, 1603-1604.)
23 Plaintiff’s Complaint fails to allege any of the elements of assault and instead resorts to
24 providing irrelevant legal conclusions and facts which do not support the intended cause of action.
25 (Complaint, p. 1-2.) Plaintiff’s first cause of action makes no mention of any acts or conduct on
26 the part of Greyhound. Instead, it refers to Mr. Farley as a “racist,” “reverse racist,” “bully,” and
27 “[f]elon.”
28 Plaintiff makes no allegation that Greyhound is responsible for the conduct of Mr. Farley
3
DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
PLAINTIFF'S COMPLAINT
1 and provides no support for the contention that Mr. Farley acted with intent to cause harmful or
2 offensive conduct excluding his own, unsupported legal conclusion that the alleged assault was
3 “with intent to cause bodily harm.”
4 Even if Plaintiff had shown conduct on the part of Greyhound, Plaintiff similarly fails to
5 allege any apprehension or anticipation of harmful conduct, and even goes so far as to say the
6 alleged conduct occurred “before P was able to utter a word.” (Complaint, 2:14-15.). Plaintiff
7 further fails to allege any imminent harm as required to prevail on a cause of action of assault.
8 Instead, he contends, without explanation, that he was afraid after being unable to board the bus
9 and then discusses a video, the genesis of which is completely unclear. (Complaint, 3: 8-11.)
10 Plaintiff further fails to allege any specific harm resulting from Mr. Farley’s alleged
11 conduct. Plaintiff states he has to deal with muscular spasms, but makes no correlation between
SACRAMENTO, CALIFORNIA 95814
12 the alleged conduct of Mr. Farley and said spasms. Instead, Plaintiff casually notes that he recently
801 K STREET, SUITE 2100
13 had spinal cord surgery which is the likely cause of the spasms he reports. (Complaint 4:5-6.)
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14 Accordingly, the Complaint has failed to state sufficient facts to constitute a cause of action for
15 assault against Greyhound. Thus, Greyhound’s demurrer to Plaintiff’s first cause of action should
16 be sustained.
17 2. Plaintiff fails to state a valid cause of action for
18 discrimination.
19 Plaintiff’s second cause of action is titled “Discrimination.” Plaintiff again provides no
20 facts alleging discrimination on the part of Greyhound throughout the complaint. Where Plaintiff
21 does discuss discrimination, he resorts to assumptions regarding the intentions of Mr. Farley
22 without providing any facts to support his contentions and offers faulty legal conclusions to
23 bolster his claim. In reality, Plaintiff fails to provide Greyhound with any indication of the
24 statutory authority under which his claim is intended to be made, resulting in the impossibility for
25 Greyhound to provide a meaningful and coherent response.
26 Even if Plaintiff had provided the legal authority under which his claim was intended to be
27 brought, Plaintiff provides no facts to support that he is a member of a protected class, or that Mr.
28 Farley’s behavior was motivated by any protected class potentially applicable to Plaintiff which
4
DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
PLAINTIFF'S COMPLAINT
1 would be required for any possible cause of action for discrimination. Plaintiff further claims he
2 was denied service due to his race, but only provides discussion of an ambiguous video in support
3 of his claims. As previously discussed, any doubt in a complaint may be resolved against the
4 plaintiff, however, facts that are not alleged are presumed not to exist. (C & H Foods co. v.
5 Hartford Ins. Co., 163 Cal.App.3d 1055, 1062 (1984) [emphasis added].) In this respect, Plaintiff
6 has failed to allege facts necessary to establish certain statutory elements and as such, the
7 Complaint has failed to state sufficient facts to constitute a cause of action for discrimination
8 against Defendant. Thus, Defendant’s demurrer to Plaintiff’s second cause of action should be
9 sustained.
10 3. Plaintiff fails to state a valid cause of action for fraud.
11 Plaintiff’s third cause of action is titled “Fraud.” Plaintiff fails to allege Greyhound
SACRAMENTO, CALIFORNIA 95814
12 committed fraud within the provided cause of action, discussing only the actions of Mr. Farley and
801 K STREET, SUITE 2100
13 a bus driver named “Brian,” for whom he does not provide any other identifying information.
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14 (Complaint, 5:13.) Moreover, even if Plaintiff had alleged fraudulent conduct on the part of
15 Greyhound, Plaintiff fails to allege any of the elements of a successful cause of action for fraud.
16 To establish fraud, a plaintiff must allege: (1) misrepresentation of a material fact;
17 knowledge of falsity (or "scienter"); (3) intent to defraud; (4) justifiable reliance on the
18 misrepresentation; and resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
19 Notably, "the allegations in a fraud action need not be liberally construed." (Wilhelm v. Natural Y
20 Surgical Specialties (1986) 25 Cal.App.4th 772, 782; see also Lazar, 12 Cal.4th at p. 645 (this
21 requirement necessitates pleading facts which "show how, when, where, to whom, and by what
22 means the representations were tendered.") In addition, when pleading fraud against a corporate
23 defendant, the requirements are even greater – a plaintiff must "allege the names of the persons
24 who made the allegedly fraudulent representations, their authority to speak, to whom they spoke,
25 what they said or wrote, and when it was said or written." (Tarmann v. State Farm Mut. Auto. Ins.
26 (1991) 2 Cal.App.4th 153, 157.)
27 First, Plaintiff’s allegations are inconsistent in that they allege at one time that Brian lied in
28 promising that Mr. Farley would be suspended (Complaint, 5:13-15.) but concede that Brian
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DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
PLAINTIFF'S COMPLAINT
1 explained Mr. Farley may be suspended pending an internal investigation. (Complaint, 1:21-23
2 [emphasis added].) If Plaintiff was informed that any suspension would be contingent on the
3 outcome of an internal investigation, Plaintiff is wholly unable to show any act of
4 misrepresentation. Second, the claim fails as a matter of law in that Civil Code Section 3294
5 clearly states that the alleged fraud must be on the part of an officer, director, or managing agent
6 of the corporation. (Civ. Code § 3294.) Plaintiff makes no allegations of the sort and even
7 identifies Brian as a bus driver for Greyhound. (Complaint, 2:19.) Plaintiff has further failed to
8 allege how, when, where, by whom, and by what means the alleged misrepresentation was made at
9 the level required to support a cause of action based in fraud.
10 Given the above, Plaintiff cannot claim reasonable reliance and the fact that Plaintiff had a
11 misunderstanding in that he unreasonably believed the Mr. Farley would be suspended based on
SACRAMENTO, CALIFORNIA 95814
12 the word of a non-managerial employee of Greyhound. The allegations within this cause of action
801 K STREET, SUITE 2100
13 are ambiguous and inconsistent with one another and are thus terminal to Plaintiffs' claim of fraud.
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14 Accordingly, the Complaint has failed to state sufficient facts to constitute a cause of action for
15 fraud against Greyhound. Thus, Greyhound’s demurrer to the fraud cause of action should be
16 sustained.
17 4. Plaintiff’s Fourth “Cause of Action” is not a Cause of Action.
18 Plaintiff’s fourth cause of action is titled “Intentional Cause of Pain and Suffering” and has
19 no resemblance to any accepted cause of action to which Greyhound could respond. Not only
20 does the complaint not state any facts to constitute a cause of action, its allegations are so vague
21 and ambiguous that a meaningful response on the part of Greyhound would be impossible.
22 Even if Plaintiff had successfully indicated pursuit of a valid cause of action, his
23 allegations include no facts which would lead to civil liability on the part of Greyhound.
24 Accordingly, the Complaint has failed to state sufficient facts to constitute a cause of action of any
25 kind against Greyhound. Thus, Greyhound’s demurrer to the Plaintiff’s fourth cause of action
26 should be sustained.
27 ///
28 ///
6
DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
PLAINTIFF'S COMPLAINT
1 B. The Allegations in Plaintiff’s Complaint are Impermissibly Vague,
2 Ambiguous, and Uncertain
3 As discussed above, Plaintiff fails to identify any facts to implicate or give rise to his
4 claims against Greyhound. Plaintiff has failed to provide the facts upon which he relies to
5 establish any cause of action against Greyhound. Without these allegations, Plaintiff has failed to
6 put Greyhound on notice of the basis of his claim of assault, discrimination, fraud, and intentional
7 cause of pain and suffering against Greyhound. Despite best efforts, Defendant Greyhound is
8 unable to identify any allegations that support any cause of action with respect to Plaintiff.
9 IV. CONCLUSION
10 For the reasons presented above, Plaintiff has failed to state a claim to support his first,
11 second, third, and fourth causes of action. As the Complaint fails to plead the necessary facts and
SACRAMENTO, CALIFORNIA 95814
12 elements for these causes of action, Defendant Greyhound respectfully requests that this Court
801 K STREET, SUITE 2100
13 sustain its Demurrer to the Complaint.
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14
15 Respectfully submitted,
16 KLINEDINST PC
17
18
DATED: October 26, 2020 By:
19 Ian A. Rambarran
W. Jason Scott
20 Attorneys for Defendant GREYHOUND LINES,
21 INC.
18854833.1
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DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
PLAINTIFF'S COMPLAINT
Preview
1 Ian A. Rambarran, Bar No. 227366 W. Jason Scott, Bar No. 222204 2 KLINEDINST PC 801 K Street, Suite 2100 10/26/2020 3 Sacramento, California 95814 (916) 444-7573/FAX (916) 444-7544 4 irambarran@klinedinstlaw.com jscott@klinedinstlaw.com 5 Attorneys for Defendant GREYHOUND LINES, 6 INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE 10 11 GEORGE BOUTROS, Case No. 20CV01788 SACRAMENTO, CALIFORNIA 95814 12 Plaintiff, DEFENDANT'S MEMORANDUM OF 801 K STREET, SUITE 2100 POINTS AND AUTHORITIES IN 13 v. SUPPORT OF DEMURRER TO KLINEDINST PC PLAINTIFF'S COMPLAINT 14 GREYHOUND, 15 Defendant. Date: December 16, 2020 Time: 9 a.m. 16 Dept.: 1 Assigned for All Purposes to: 17 Judge: Hon. Tamara L. Mosbarger Dept.: 1 18 19 I. INTRODUCTION 20 Defendant Greyhound (“Greyhound”) presents this Demurrer to the Complaint pursuant to 21 Code of Civil Procedure section 430.10, subdivisions (e) and (f). The Complaint identifies named 22 Plaintiff, Dr. George Boutros, and attempts to set forth five causes of action titled Assault with 23 Intent to Cause Bodily Harm, Discrimination, Fraud, Intentional Cause of Pain and Suffering, and 24 Punitive Damages. Plaintiff clearly fails to provide facts sufficient to state any valid claims against 25 Greyhound. Further, the facts that are provided by Plaintiff are presented in a vague and 26 ambiguous manner, preventing Greyhound from ascertaining the legal authority upon which 27 Plaintiff's claims are asserted, and preventing Greyhound from being able to provide a meaningful 28 response. Accordingly, Defendant Greyhound urges this Court to sustain its Demurrer to 1 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT 1 Plaintiff’s Complaint. 2 II. LEGAL STANDARD FOR DEMURRER 3 Code of Civil Procedure section 430.10 provides in pertinent part: 4 The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer . . . to the pleading on any one or more of the following 5 grounds ... 6 (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 7 ambiguous and unintelligible. 8 A demurrer to the complaint may be taken to the whole complaint or to any causes of 9 action stated therein. (Code Civ. Proc. § 430.50.) 10 A general demurrer lies when “the pleading does not state facts sufficient to constitute a 11 cause of action.” (Code Civ. Proc. § 430.30, subd. (a); 430.10(e).) The function of the demurrer is SACRAMENTO, CALIFORNIA 95814 12 to test the sufficiency of the pleading as a matter of law. (Boyle v. City of Redondo Beach (1999) 801 K STREET, SUITE 2100 13 70 Cal.App.4th 1109, 1114, fn. 2.) All properly pled allegations of the complaint, but not KLINEDINST PC 14 contentions, deductions or conclusions of fact or law, are treated as truthful in scrutinizing the 15 complaint. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829 [emphasis 16 added].) Moreover, a demurrer is proper where a complaint fails to state a cause of action or where 17 it discloses a defense which would bar recovery. (Johnson v. Superior Court 25 (1994) 18 Cal.App.4th 1564, 1567.) Moreover, “[a]ny liberal construction favoring the plaintiff must be 19 tempered with a recognition that the defendant should not be required to respond to allegations so 20 vague, ambiguous or inconsistent as to make a meaningful response impossible.” (1 Cal. 21 Affirmative Def. § 10:1 (2005 Ed.) [emphasis added].) In that regard, any doubt in the complaint 22 may be resolved against a plaintiff and facts that are not alleged are presumed not to exist. (C & H 23 Foods co. v. Hartford Ins. Co., 163 Cal.App.3d 1055, 1062 (1984) [Emphasis added].) In 24 determining the sufficiency of a pleading against a demurrer, the court must look exclusively to 25 facts alleged in the pleadings and matters that may be proven by judicial notice. (Blank v. Kirwan 26 (1985) 39 Cal.3d 311, 318.) 27 As set forth below, Plaintiff’s Complaint fails to state facts sufficient to constitute a single 28 cause of action against Greyhound. Furthermore, the allegations in Plaintiff’s Complaint are 2 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT 1 impermissibly vague, ambiguous and uncertain as to make it impossible for Greyhound to provide 2 a meaningful response. Therefore, based upon the arguments contained herein, Defendant 3 respectfully requests that the Court sustain this demurrer. 4 III. ARGUMENT 5 While California pleading requirements are liberal, a complaint must at a minimum 6 “apprise the adversary of the factual basis of the claim,” Estate of Archer (1987) 193 Cal.App.3d 7 238, 245, and “set forth facts constituting [a valid] cause of action, in ordinary and concise 8 language.” Code Civ. Proc. § 425.10(a). Plaintiff’s complaint fails to provide Greyhound with the 9 factual basis for any claim alleged. 10 A. Each of Plaintiff’s Claims Fail to State a Valid Cause of Action. 11 1. Plaintiff fails to state a valid cause of action for assault. SACRAMENTO, CALIFORNIA 95814 12 Plaintiff’s first cause of action is titled “Assault with Intent to Cause Bodily Harm.” While 801 K STREET, SUITE 2100 13 assault with intent to cause bodily harm is not the title of a recognized cause of action, it is likely KLINEDINST PC 14 Plaintiff intended to pursue a cause of action for assault. In general, a cause of action for assault 15 requires a plaintiff to show (1) the defendant acted with intent to cause harmful or offensive 16 contact, (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive 17 manner, (3) the plaintiff did not consent to the defendant’s conduct, (4) the plaintiff was harmed, 18 and (5) the defendant’s conduct caused the plaintiffs harm. (Carlsen v. Koivumaki (2014) 227 19 Cal.App.4th 879, 890 [citing So v. Shin (2013) 212 Cal.App.4th 652, 668-669].) A cause of action 20 for assault further requires anticipation or apprehension of immediate harm on the part of the 21 plaintiff. (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3rd 2, 232; Plotnik 22 v. Meihaus (2012) 208 Cal.App.4th 1590, 1603-1604.) 23 Plaintiff’s Complaint fails to allege any of the elements of assault and instead resorts to 24 providing irrelevant legal conclusions and facts which do not support the intended cause of action. 25 (Complaint, p. 1-2.) Plaintiff’s first cause of action makes no mention of any acts or conduct on 26 the part of Greyhound. Instead, it refers to Mr. Farley as a “racist,” “reverse racist,” “bully,” and 27 “[f]elon.” 28 Plaintiff makes no allegation that Greyhound is responsible for the conduct of Mr. Farley 3 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT 1 and provides no support for the contention that Mr. Farley acted with intent to cause harmful or 2 offensive conduct excluding his own, unsupported legal conclusion that the alleged assault was 3 “with intent to cause bodily harm.” 4 Even if Plaintiff had shown conduct on the part of Greyhound, Plaintiff similarly fails to 5 allege any apprehension or anticipation of harmful conduct, and even goes so far as to say the 6 alleged conduct occurred “before P was able to utter a word.” (Complaint, 2:14-15.). Plaintiff 7 further fails to allege any imminent harm as required to prevail on a cause of action of assault. 8 Instead, he contends, without explanation, that he was afraid after being unable to board the bus 9 and then discusses a video, the genesis of which is completely unclear. (Complaint, 3: 8-11.) 10 Plaintiff further fails to allege any specific harm resulting from Mr. Farley’s alleged 11 conduct. Plaintiff states he has to deal with muscular spasms, but makes no correlation between SACRAMENTO, CALIFORNIA 95814 12 the alleged conduct of Mr. Farley and said spasms. Instead, Plaintiff casually notes that he recently 801 K STREET, SUITE 2100 13 had spinal cord surgery which is the likely cause of the spasms he reports. (Complaint 4:5-6.) KLINEDINST PC 14 Accordingly, the Complaint has failed to state sufficient facts to constitute a cause of action for 15 assault against Greyhound. Thus, Greyhound’s demurrer to Plaintiff’s first cause of action should 16 be sustained. 17 2. Plaintiff fails to state a valid cause of action for 18 discrimination. 19 Plaintiff’s second cause of action is titled “Discrimination.” Plaintiff again provides no 20 facts alleging discrimination on the part of Greyhound throughout the complaint. Where Plaintiff 21 does discuss discrimination, he resorts to assumptions regarding the intentions of Mr. Farley 22 without providing any facts to support his contentions and offers faulty legal conclusions to 23 bolster his claim. In reality, Plaintiff fails to provide Greyhound with any indication of the 24 statutory authority under which his claim is intended to be made, resulting in the impossibility for 25 Greyhound to provide a meaningful and coherent response. 26 Even if Plaintiff had provided the legal authority under which his claim was intended to be 27 brought, Plaintiff provides no facts to support that he is a member of a protected class, or that Mr. 28 Farley’s behavior was motivated by any protected class potentially applicable to Plaintiff which 4 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT 1 would be required for any possible cause of action for discrimination. Plaintiff further claims he 2 was denied service due to his race, but only provides discussion of an ambiguous video in support 3 of his claims. As previously discussed, any doubt in a complaint may be resolved against the 4 plaintiff, however, facts that are not alleged are presumed not to exist. (C & H Foods co. v. 5 Hartford Ins. Co., 163 Cal.App.3d 1055, 1062 (1984) [emphasis added].) In this respect, Plaintiff 6 has failed to allege facts necessary to establish certain statutory elements and as such, the 7 Complaint has failed to state sufficient facts to constitute a cause of action for discrimination 8 against Defendant. Thus, Defendant’s demurrer to Plaintiff’s second cause of action should be 9 sustained. 10 3. Plaintiff fails to state a valid cause of action for fraud. 11 Plaintiff’s third cause of action is titled “Fraud.” Plaintiff fails to allege Greyhound SACRAMENTO, CALIFORNIA 95814 12 committed fraud within the provided cause of action, discussing only the actions of Mr. Farley and 801 K STREET, SUITE 2100 13 a bus driver named “Brian,” for whom he does not provide any other identifying information. KLINEDINST PC 14 (Complaint, 5:13.) Moreover, even if Plaintiff had alleged fraudulent conduct on the part of 15 Greyhound, Plaintiff fails to allege any of the elements of a successful cause of action for fraud. 16 To establish fraud, a plaintiff must allege: (1) misrepresentation of a material fact; 17 knowledge of falsity (or "scienter"); (3) intent to defraud; (4) justifiable reliance on the 18 misrepresentation; and resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) 19 Notably, "the allegations in a fraud action need not be liberally construed." (Wilhelm v. Natural Y 20 Surgical Specialties (1986) 25 Cal.App.4th 772, 782; see also Lazar, 12 Cal.4th at p. 645 (this 21 requirement necessitates pleading facts which "show how, when, where, to whom, and by what 22 means the representations were tendered.") In addition, when pleading fraud against a corporate 23 defendant, the requirements are even greater – a plaintiff must "allege the names of the persons 24 who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, 25 what they said or wrote, and when it was said or written." (Tarmann v. State Farm Mut. Auto. Ins. 26 (1991) 2 Cal.App.4th 153, 157.) 27 First, Plaintiff’s allegations are inconsistent in that they allege at one time that Brian lied in 28 promising that Mr. Farley would be suspended (Complaint, 5:13-15.) but concede that Brian 5 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT 1 explained Mr. Farley may be suspended pending an internal investigation. (Complaint, 1:21-23 2 [emphasis added].) If Plaintiff was informed that any suspension would be contingent on the 3 outcome of an internal investigation, Plaintiff is wholly unable to show any act of 4 misrepresentation. Second, the claim fails as a matter of law in that Civil Code Section 3294 5 clearly states that the alleged fraud must be on the part of an officer, director, or managing agent 6 of the corporation. (Civ. Code § 3294.) Plaintiff makes no allegations of the sort and even 7 identifies Brian as a bus driver for Greyhound. (Complaint, 2:19.) Plaintiff has further failed to 8 allege how, when, where, by whom, and by what means the alleged misrepresentation was made at 9 the level required to support a cause of action based in fraud. 10 Given the above, Plaintiff cannot claim reasonable reliance and the fact that Plaintiff had a 11 misunderstanding in that he unreasonably believed the Mr. Farley would be suspended based on SACRAMENTO, CALIFORNIA 95814 12 the word of a non-managerial employee of Greyhound. The allegations within this cause of action 801 K STREET, SUITE 2100 13 are ambiguous and inconsistent with one another and are thus terminal to Plaintiffs' claim of fraud. KLINEDINST PC 14 Accordingly, the Complaint has failed to state sufficient facts to constitute a cause of action for 15 fraud against Greyhound. Thus, Greyhound’s demurrer to the fraud cause of action should be 16 sustained. 17 4. Plaintiff’s Fourth “Cause of Action” is not a Cause of Action. 18 Plaintiff’s fourth cause of action is titled “Intentional Cause of Pain and Suffering” and has 19 no resemblance to any accepted cause of action to which Greyhound could respond. Not only 20 does the complaint not state any facts to constitute a cause of action, its allegations are so vague 21 and ambiguous that a meaningful response on the part of Greyhound would be impossible. 22 Even if Plaintiff had successfully indicated pursuit of a valid cause of action, his 23 allegations include no facts which would lead to civil liability on the part of Greyhound. 24 Accordingly, the Complaint has failed to state sufficient facts to constitute a cause of action of any 25 kind against Greyhound. Thus, Greyhound’s demurrer to the Plaintiff’s fourth cause of action 26 should be sustained. 27 /// 28 /// 6 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT 1 B. The Allegations in Plaintiff’s Complaint are Impermissibly Vague, 2 Ambiguous, and Uncertain 3 As discussed above, Plaintiff fails to identify any facts to implicate or give rise to his 4 claims against Greyhound. Plaintiff has failed to provide the facts upon which he relies to 5 establish any cause of action against Greyhound. Without these allegations, Plaintiff has failed to 6 put Greyhound on notice of the basis of his claim of assault, discrimination, fraud, and intentional 7 cause of pain and suffering against Greyhound. Despite best efforts, Defendant Greyhound is 8 unable to identify any allegations that support any cause of action with respect to Plaintiff. 9 IV. CONCLUSION 10 For the reasons presented above, Plaintiff has failed to state a claim to support his first, 11 second, third, and fourth causes of action. As the Complaint fails to plead the necessary facts and SACRAMENTO, CALIFORNIA 95814 12 elements for these causes of action, Defendant Greyhound respectfully requests that this Court 801 K STREET, SUITE 2100 13 sustain its Demurrer to the Complaint. KLINEDINST PC 14 15 Respectfully submitted, 16 KLINEDINST PC 17 18 DATED: October 26, 2020 By: 19 Ian A. Rambarran W. Jason Scott 20 Attorneys for Defendant GREYHOUND LINES, 21 INC. 18854833.1 22 23 24 25 26 27 28 7 DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT