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KENNETH
STEPHEN
S.
G.
KATZOFF
PREONAS
(SBN
(SBN
103490)
245334) Ay
PiLiny,
Bier ,
Katzoff & Riggs LLP AA (RISKY
1500 Park Avenue, Suite 300
Emeryville, CA 94608
Tel. (510) 597-1990
Fax. (510) 597-0295
Attorneys for Defendant
JEAN MARTINEZ JACKSON
SUPERIOR COURT OF CALIFORNIA — UNLIMITED CIVIL JURISDICTION
COUNTY OF ALAMEDA
WARREN WELSH Case No. RG18906355
10 Assigned for all purposes to Hon. Jo-Lynn
a
LLP
Plaintiff, Lee Department 18
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300
94608
11
RIGGS
SUITE
i
(510) 597-1990
CA
VS. MEMORANDUM IN SUPPORT OF
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AVE.,
EMERYVILLE,
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&
DEMURRER OF DEFENDANT JEAN
di
PARK
KATZOFF
MARTINEZ JACKSON TO SECOND
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1500
13 JEAN MARTINEZ JACKSON, et al. AMENDED COMPLAINT
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i
14 Date: February 4, 2020
Time: 3PM.
15 Defendants. Location: Dept. 521
Reservation No. R-2145983
ll
16
Complaint Filed: May 25, 2018
17 Trial Date: TBD
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
TABLE OF CONTENTS
INTRODUCTION oo. cesccceesecseeessecseessecsecsecsesssssessassecsessessessessesaaeaseesseeeaaaeegs
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RELEVANT FACTS AND PROCEDURAL HISTORY uu... cceccesesessecseceeeeneeeeeees l
ARGUMENT 100... eccscssecseeeeesscsseesscseesecnaessesseeseeseessscsecsecaeeseseseeaasseceeseseaseasesassaseneseseaees
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A. The Cause of Action For Fraudulent Misrepresentation Fails as a Matter
of Law Because It isNot Plead With Particularity. 0.0.0... ccc ceesseesessesetseneeneeeees
3
B. The Court Should Sustain the Demurrer to the Cause of Action For
Fraudulent Concealment Because ItFails to Plead Any Duty of
DiISCIOSULE. .......cceccceeecceeecceescousesconsstecnseecnsssecsscensvscessseecncscausseeeescseussssnarscaatceeassscees
6
C. Because Plaintiff’s Fraud and Concealment Claims Fail as a Matter of
Law, Plaintiff's Related Equitable Claims for Rescission, Equitable
Estoppel, Cancellation of Instruments, Quiet Title, Ejectment, Declaratory
Relief and Accounting (“the Equitable Claims”) Also Fail as a Matter of
10 LAW. weeeccesssccessscesscceeseeeeessceseseeecsseecsscecessaeesesseaesseacesacecessaecestsacescesenaeecstateestaeeesanaes
7
LLP
300
94608
11 ~ PROOF OF SERVICE uu... cecceccsscesccseesecsseceeeesecesscsascseseaeesaesnaeseesesesesessseeneesaeesaeeeaeegs
9
RIGGS
SUITE
597-1990
CA
AVE.,
EMERYVILLE,
12
&
(50)
PARK
KATZOFF
1500
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_ 17
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
TABLE OF AUTHORITIES
Cases
Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443
Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434
C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055
Carter v. Seaboard Fin. Co. (1949) 33 Cal.2d 564
Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1
Conrad v. Bank of America (1996) 45 Cal.App.4th 133
Cooper v. Equity Gen. Ins. (1990) 219 Cal.App.3d 1252
Lazar v. Superior Court (1996) 12 Cal.4th 631
LiMandri v. Judkins (1997) 52 Cal.App.4th 326
10
LLP
Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115
300
94608
11
RIGGS
SUITE
(510) 597-1990
CA
Lingsch v. Savage (1963) 213 Cal.App.2d 729
EMERYVILLE,
AVE.,
12
&
PARK
KATZOFF
Maystruck v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881
1500
13
Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982
14
Rogers v. Warden (1942) 20 Cal.2d 286
15 Sackett v. Wyatt (1973) 32 Cal.App.3d 592
16 Serrano v. Priest (1971) 5 Cal.3d 584
17 Stansfield v. Starkey (1990) 220.Cal.App.3d 59
18 Titus v. Canyon Lake Prop. Owners Assoc. (2004) 118 Cal.App.4th 906
Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112
19
20 Statutes
21 CCP § 430.41 1,2
22
Other Authorities
CACI 1901
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
INTRODUCTION
Without ever meeting defendant JEANNE MARTINEZ JACKSON (“Defendant”)
or communicating with her in any way, Plaintiff WARREN WELSH (“Plaintiff”) sold a
home (“the Property”) to her by unconditionally transferring to her a deed (“the Deed’)
that specifically set forth the purchase price. As matter of law, the claims in his second
amended complaint (“SAC”) for fraud and concealment fail where the SAC fails to allege -
that Defendant ever communicated with Plaintiff in any way or had any special
relationship with Plaintiff to support an obligation of disclosure.
Because there is no possibility that Plaintiff can cure these fatal defects the Court
10 should sustain the demurrer without leave to amend. Because Plaintiffs equitable claims
LLP
300
94608
11 in his SAC are based upon his allegations of fraud and concealment the Court should
RIGGS
SUITE
(510) 597-1990
CA
AVE.,
EMERYVILLE,
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&
likewise sustain these entirely derivative claims without leave to amend.
PARK
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1500
13 RELEVANT FACTS AND PROCEDURAL HISTORY
14 Plaintiff purchased the Property from Defendant in June 2017. On May 26, 2018
15 Plaintiff filed his initial complaint (“Complaint”) in this action. In September 2018, the
16 parties met and conferred as required by CCP § 430.41 regarding grounds for a demurrer
17 to the Complaint. In response, after a lengthy delay of some six months, Plaintiff
18 ultimately filed the FAC in March 2019.
19 The FAC removed language regarding three addendums to the agreement and has
20 failed to attach all three addendums described in the Complaint to the FAC. The FAC
21 refers to only a single Addendum. The FAC alleged that Defendant breached the
22 Addendum as opposed to the “Agreement and/or Addendum” as alleged in the Complaint.
Defendant has at all times denied the validity of the Addendum. (FAC, 48.) The FAC
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
removed prior causes of action for Reformation of Contract; Breach of Implied Contract;
and Promissory Estoppel and added a cause of action for financial abuse of an elder adult.
Defendant demurred to the FAC which the Court sustained with leave to amend in
its order of September 28, 2019. On October 21, 2019 Plaintiff filed his SAC and served
itby mail. On November 25, 2019 Defendant filed a declaration under CCP § 430.41 to
extend the time to meet and confer regarding further demurrer to the SAC.
ARGUMENT
A demurrer tests the legal sufficiency of the factual allegations in a complaint.
(Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) A complaint is subject
10 to demurrer when it fails to state a cause of action. (Code Civ. Proc. § 430.10(e).) If the
LLP
300
94608
11 complaint fails to plead any essential element of a particular cause of action, then the
RIGGS
SUITE
(510) 597-1990
CA
AVE,,
EMERYVILLE,
12
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demurrer should be sustained. (Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152
PARK
KATZOFF
1500
13 Cal.App.4th 115, 122.)
14 In ruling on a demurrer, the court should “treat the demurrer as admitting all
15 material facts properly pleaded, but not contentions, deductions or conclusions of fact or
16 law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Conclusory allegations that do not
17 have factual support are insufficient to support a cause of action, and are “fatal to the
18 complaint.” (Maystruck v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881, 888-889.) Any
19 “[djoubt in the complaint may be resolved against plaintiff and facts not alleged are
20 presumed not to exist.” (C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d
21 1055, 1062.) A demurrer should be sustained without leave to amend if itdoes not appear
22 that there is any reasonable probability that the defects in the complaint can be cured by
amendment. (Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 603.) “It is the plaintiff's
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
Y ©
burden to show either the trial court or the reviewing court how the complaint can be
amended to state a cause of action.” (Titus v. Canyon Lake Prop. Owners Assoc. (2004)
118 Cal.App.4th 906, 917.) A plaintiff satisfies this burden “by showing in what manner
...the complaint can be amended and how that amendment will change the legal effect of
the pleadings.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444 [noting
that plaintiff “did not provide a proposed amendment to cure the faults of her second
amended complaint and that omission alone supports the trial court’s order denying leave
to amend”’].)
A. The Cause of Action For Fraudulent Misrepresentation Fails as a
Matter of Law Because It is Not Plead With Particularity.
10
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The seventh cause of action for intentional misrepresentation fails as a matter of
300
94608
11
RIGGS
SUITE
(510) 597-1990
CA
law because it fails to plead all of the essential elements, let alone with the factual
AVE.,
EMERYVILLE,
12
&
PARK
KATZOFF
specificity required for a fraud or concealment claim. (Cooper v.Equity Gen. Ins. (1990)
1500
13
219 Cal.App.3d 1252, 1262 (“[E]very element of a cause of action for fraud must be
14
alleged both factually and specifically, and the policy of liberal construction of pleadings
15
will not be invoked to sustain a defective complaint.”).
16
When a complaint asserts a cause of action for fraud or deceit every element of
17.
that cause of action must by “pleaded with specificity,” meaning that “a plaintiff must
18
allege facts showing how, when, where, to whom, and by what means the representations
19
were made.” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008.)
20
“The elements of promissory fraud ... are (1) a promise made regarding a material
21
fact without any intention of performing it;(2) the existence of the intent not to perform
22
at the time the promise was made; (3) intent to deceive or induce the promisee to enter
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the
party making the promise; and (6) resulting damage to the promise[e].” (Behnke v. State
_ Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1453.)
As with any other form of fraud, each element of a promissory fraud claim must
be alleged with particularity. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1059-
1060.) This particularity requirement necessitates pleading facts which “show how, when,
where, to whom, and by what means the representations were tendered.” (Lazar v.
Superior Court (1996) 12 Cal.4th 631, 645.) The particularity requirement applies to each
element of fraud, which must be pleaded “factually and specifically.” (Conrad v. Bank
10 of America (1996) 45 Cal.App.4th 133, 156.)
LLP
300
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RIGGS
SUITE
Here, the SAC fails to allege all of these elements with the required particularity.
(510) 597-1990
CA
AVE.,
EMERYVILLE,
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The SAC fails to plead the exact content of the alleged misrepresentations, or how the
PARK
KATZOFF
1500
13 alleged misrepresentations were made, where they were made, and by what means they
14 were tendered.
15 In fact, the SAC does not allege that Defendant made any representations at all to
16 Plaintiff. The SAC § 20 vaguely asserts that there was “acts of acts of fraud-concealment
17 during negotiation of the Addendum” but failsto explain what these acts were. Paragraph
18 6 of the SAC fairs no better in generally alleging that “Plaintiff and Defendant negotiated
19 the terms of an Addendum” without explaining what was misrepresented during the
20 negotiations and how this was misrepresented. The general statement in J 6 of the SAC
21 that Plaintiff executed the Addendum “at Defendant’s request” fails to explain how, when
22 and where this request was communicated. Likewise the very general statements in {
58 that “[b]y way of their negotiations, Defendant induced Plaintiff to believe that she
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
would not only execute the Addendum” fails to explain with particularity what occurred
in the “negotiations.”
The allegations are not particular as to what the alleged misrepresentations were
and how and when itDefendant communicated them to Plaintiff. As a matter of law, such
general statements are insufficient to sustain a fraud cause of action for intentional
misrepresentation.
Based on the foregoing, the Court should dismiss the cause of action for fraud.
(Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 75 (finding that trial court acted within
its discretion in sustaining demurrers to “general and imprecise” fraud claims); Citizens
10 of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1,21 (finding that
LLP
300
94608
il
RIGGS
SUITE
trial court properly sustained demurrer to fraud claim because plaintiff's “allegations of
(810) 597-1990
EMERYVILLE,CA
AVE.,
12
&
fraud are precisely the sort of vague allegations that the particularity requirement is
PARK
KATZOFF
1500
13 intended to guard against.”); Gil v. Bank of America, National Association (2006) 138
14 Cal.App.4th 1371, 1381 (affirming dismissal of fraud claim because the “allegations are
15 simply not specific enough to show the factual basis of a fraud cause of action.”).)
16 The SAC improperly attempts to state a cause of action for fraud without ever
17 alleging that Defendant and Plaintiff ever communicated with one another in any way.
18 No amendment can cure this fatal defect because it isclear from the Complaint, the FAC
19 and the SAC that Plaintiffhas never even met Defendant or otherwise communicated with
20 her. As a matter of law, there can be no claim for fraudulent misrepresentation in such
21 circumstances.
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
. t
B. The Court Should Sustain the Demurrer to the Cause of Action For
Fraudulent Concealment Because It Fails to Plead Any Duty of
Disclosure.
The SAC fails to state a cause of action to allege for fraudulent concealment
because the it does not allege facts establishing a duty on Defendant’s part to disclose. A
complaint for fraud and deceit based on suppression of fact does not constitute a cause of
action ifit fails to allege that a fact was suppressed by one who is bound to disclose it.
(Lingsch v. Savage (1963) 213 Cal.App.2d 729, 738-739; Chicago Title Ins. Co. v.
Superior Court (1985) 174 Cal.App.3d 1142, 1156.) In the absence of any showing that
the defendant had a duty to speak, such as the existence of a confidential or fiduciary
10 relationship between the parties, the defendant is not bound to volunteer information
LLP
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11 concerning the subject matter in dispute. (Carter v. Seaboard Fin. Co. (1949) 33 Cal.2d
RIGGS
SUITE
(510) 597-1990
EMERYVILLE,CA
AVE.,
12
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564, 569; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337.) A complaint for
PARK
KATZOFF
1500
13 fraud and deceit based on suppression of fact is not sufficient to constitute a cause of
14 action ifit does not allege that the other party gave information of other facts that were
15 likely to mislead for want of the communication of the suppressed fact. (Rogers v.
16 Warden (1942) 20 Cal.2d 286, 289-290.) Likewise, CACI 1901 that requires that a
17 Plaintiff support a concealment claim with allegations of a fiduciary relationship, e.g.,
18 “business partners” or partial disclosure of facts but concealment of others.
19 Here, the SAC alleges that Defendant’s concealment is the same conduct as the
20 alleged breach of the Addendum. Under the apposite authority such allegations are not
21 sufficient. Because no confidential relationship existed between Defendant and Plaintiff,
22 this fatal defect cannot be cured by amendment. Accordingly, the Court should sustain
the demurrer without leave to amend as to this cause of action.
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
.
‘
Cc. Because Plaintiff’s Fraud and Concealment Claims Fail as a Matter of
Law, Plaintiff’s Related Equitable Claims for Rescission, Equitable
Estoppel, Cancellation of Instruments, Quiet Title, Ejectment,
Declaratory Relief and Accounting (“the Equitable Claims”) Also Fail
as a Matter of Law.
Despite being plead separately, the Equitable Claims in the SAC are entirely
derivative of Plaintiff's claim for rescission. The SAC does not contain any separate
factual allegations in support of the Equitable Claims that are different than those in
support of the fraud and concealment claims.
Here, the allegations of fraud in the SAC failas a matter of law. Under the apposite
authority, as a matter of law, no belated allegation in the SAC regarding the breach of
10 the Addendum, gives rise to a claim for rescission.
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11 The gravamen of all the Equitable Claims in the SAC is a claim for Rescission of
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EMERYVILLE,CA
AVE.,
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the transaction to sell the Property. The causes of action for Cancellation of the Deed
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13 and Declaratory relief are, in all substance, requests to unwind the transaction. The same
14 is true of the Quiet Title and Ejectment claims. Because the Rescission claim fails as a
15 matter of law under the apposite authority, so to do the rest of the Equitable Claims. As
16 such, the Court should sustain the demurrer as to the Equitable Claims. Because this
17 fatal defect as to these claims cannot be cured by amendment, the Court should sustain
18 the demurrer without leave to amend.
19 CONCLUSION
20 Defendant respectfully requests the Court sustain the demurrer with leave to
21 amend.
22
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
Dated: January 10, 2020 KATZOFF & RIGGS LLP
er -PREONAS
Attorneys for Defendant
JEANNE JACKSON MARTINEZ
10
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300
94608
11
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(510) 597-1990
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AVE.,
EMERYVILLE,
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
@ ‘ @
CIV-140
ATTORNEYORPARTYWITHOUTATTORNEY: STATEBARNO: 245334 FORCOURTUSE ONLY
name:Stephen G. Preonas
FIRMNAME:Katzoff
& RiggsLLP
STREETaDoRESS:1500 ParkAve, Suite300
city:
Emeryville STATE:
CA zIP CODE:
94608
TELEPHONENO: (610)597-1990 FAXNO: (510) 597-0295
E-MAIL
ADDRESS:spreonas@katzoffriggs.com
ATTORNEYFOR(Name):
Defendant Jean MartinezJackson
SUPERIOR COURT OF CALIFORNIA, COUNTY OFALAMEDA
STREET
ADDRESS: 1225 FallonStreet
MAILING
ADDRESS:
city
AND zIP CODE: Oakland,CA 94612-4293
BRANCHNAME: Rene C. Davidson
Plaintiff/Petitioner:
Warren PeterWelsh
Defendant/Respondent: Jean Martinez Jackson,et al.
DECLARATION OF DEMURRING OR MOVING PARTY REGARDING CASEMINBER:
MEET AND CONFER RG18906355
To thepartyfiling
a demurrer,motion tostrike,
or motion for judgment
on the pleadings:Thisformmust be filedwiththedemurrer,
motion tostrike,
ormotion for judgmenton thepleadings.
1. (Name of party
making declaration):
Jean Martinez Jackson was served with
[__] acomplaint [-x_] anamended complaint [__] across-complaint
[-"] ananswer [__] other (specify):
intheabove-titledactionand isfilinga [xX] demurrer [7_] motion tostrike [7] motionforjudgment on thepleadings
DECLARATION (Choose eithera.orb.)
2. a. [<) Atleast five
days before thedatea responsive pleadingwas due tobe filed
(if| amfiling
a demurreror motiontostrike)
orat leastfive
days before filing
amotion forjudgment on thepleadings(if!am filing
amotion forjudgment onthe
pleadings),| metand conferredwiththe partywho filed
the pleading [[_] bytelephone [(_] inperson andwe
didnot reachan agreement resolvingthemattersraisedby the demurrer,motionto strike,
ormotion for
judgment on
the pleadings.
b. [__] The partywho filed
thepleading subjecttodemurrer,motion tostrike,
or motionforjudgment on thepleadingsfailedto
respond tomy requesttomeet and confer orotherwisefailedtomeet and conferingood faith.
To provideadditional
information,pleaseuse form MC-031, Attached Declaration.
| declare
under penaityofperjuryunder the lawsofthe Stateof California
that
the information
above istrueand correct.
Date: January10, 2020
Stephen G. Preonas
(NAMEOFPARTYORATTORNEYFORPARTY) Sarbre OFPARTYOR ATTORNEY
FORPARTY}
Page10f 1
FormApproved
for Optional
Use Code
of Civil Procedure,
Judicial
Council
of California DEC LARATION OF DEMURRING OR MOVING PA RTY §§ 430.41,
435.6, 439
Clv-140
[Rev. January1,
2019] REGARDING MEET AND CONFER www. courts.ca.gov
PROOF OF SERVICE
I,the undersigned, declare that Iam, and was at the time of service of the papers
herein referred to, over the age of eighteen (18) years and not a party to the within action
or proceeding. I am employed in the County of Los Angeles, State of California. My
business address is 1801 Century Park East, 25" Floor, Los Angeles, California 90067. I
am familiar with the regular mail collection and processing practices of Katzoff & Riggs
for correspondence deposited for mailing with the United States Postal Service. On the
date set forth below, I served the following document(s):
MEMORANDUM IN SUPPORT OF DEMURRER OF DEFENDANT JEAN
MARTINEZ JACKSON TO SECOND AMENDED COMPLAINT
DECLARATION OF DEMURRING OR MOVING PARTY REGARDING
MEET AND CONFER
addressed to each such addressee respectively as follows:
10 Omar Krashna
LLP
Krashna Law Firm
300
94608
11
RIGGS
SUITE
675 Hegenberger Road, Suite 260
(510) 597-1990
CA
Oakland, CA 94621
AVE.,
EMERYVILLE,
12
&
okrashnaf@vyahoo.com
PARK
KATZOFF
krashnalaw@gmail.com
1500
13
I then served the addressees in the following manner:
14
[X] VIA HAND DELIVERY by causing a true copy and/or original thereof to be
15 placed in a sealed envelope and delivered via messenger to the addressee at the
address above.
16
[X] VIA E-MAIL, by causing an electronic copy to be attached as a PDF to an e-
17 mail, addressed to the person(s) listed above at the e-mail address(es) listed
above, and transmitting it via e-mail.
18
Ideclare under penalty of perjury, under the laws of the State of California and the
19 United States of America that the foregoing is true and correct. Executed on January 10,
2020 at Emeryville, California.
20
21
C{AMES BROWN
22
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MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC
Preview
® OT i wy) = + KENNETH STEPHEN S. G. KATZOFF PREONAS (SBN (SBN 103490) 245334) Ay PiLiny, Bier , Katzoff & Riggs LLP AA (RISKY 1500 Park Avenue, Suite 300 Emeryville, CA 94608 Tel. (510) 597-1990 Fax. (510) 597-0295 Attorneys for Defendant JEAN MARTINEZ JACKSON SUPERIOR COURT OF CALIFORNIA — UNLIMITED CIVIL JURISDICTION COUNTY OF ALAMEDA WARREN WELSH Case No. RG18906355 10 Assigned for all purposes to Hon. Jo-Lynn a LLP Plaintiff, Lee Department 18 i 300 94608 11 RIGGS SUITE i (510) 597-1990 CA VS. MEMORANDUM IN SUPPORT OF i AVE., EMERYVILLE, 12 & DEMURRER OF DEFENDANT JEAN di PARK KATZOFF MARTINEZ JACKSON TO SECOND i 1500 13 JEAN MARTINEZ JACKSON, et al. AMENDED COMPLAINT i i 14 Date: February 4, 2020 Time: 3PM. 15 Defendants. Location: Dept. 521 Reservation No. R-2145983 ll 16 Complaint Filed: May 25, 2018 17 Trial Date: TBD 18 19 20 21 22 i MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC TABLE OF CONTENTS INTRODUCTION oo. cesccceesecseeessecseessecsecsecsesssssessassecsessessessessesaaeaseesseeeaaaeegs 1 RELEVANT FACTS AND PROCEDURAL HISTORY uu... cceccesesessecseceeeeneeeeeees l ARGUMENT 100... eccscssecseeeeesscsseesscseesecnaessesseeseeseessscsecsecaeeseseseeaasseceeseseaseasesassaseneseseaees 2 A. The Cause of Action For Fraudulent Misrepresentation Fails as a Matter of Law Because It isNot Plead With Particularity. 0.0.0... ccc ceesseesessesetseneeneeeees 3 B. The Court Should Sustain the Demurrer to the Cause of Action For Fraudulent Concealment Because ItFails to Plead Any Duty of DiISCIOSULE. .......cceccceeecceeecceescousesconsstecnseecnsssecsscensvscessseecncscausseeeescseussssnarscaatceeassscees 6 C. Because Plaintiff’s Fraud and Concealment Claims Fail as a Matter of Law, Plaintiff's Related Equitable Claims for Rescission, Equitable Estoppel, Cancellation of Instruments, Quiet Title, Ejectment, Declaratory Relief and Accounting (“the Equitable Claims”) Also Fail as a Matter of 10 LAW. weeeccesssccessscesscceeseeeeessceseseeecsseecsscecessaeesesseaesseacesacecessaecestsacescesenaeecstateestaeeesanaes 7 LLP 300 94608 11 ~ PROOF OF SERVICE uu... cecceccsscesccseesecsseceeeesecesscsascseseaeesaesnaeseesesesesessseeneesaeesaeeeaeegs 9 RIGGS SUITE 597-1990 CA AVE., EMERYVILLE, 12 & (50) PARK KATZOFF 1500 13 14 15 16 _ 17 18 19 20 21 22 il MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC TABLE OF AUTHORITIES Cases Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443 Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434 C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055 Carter v. Seaboard Fin. Co. (1949) 33 Cal.2d 564 Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1 Conrad v. Bank of America (1996) 45 Cal.App.4th 133 Cooper v. Equity Gen. Ins. (1990) 219 Cal.App.3d 1252 Lazar v. Superior Court (1996) 12 Cal.4th 631 LiMandri v. Judkins (1997) 52 Cal.App.4th 326 10 LLP Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115 300 94608 11 RIGGS SUITE (510) 597-1990 CA Lingsch v. Savage (1963) 213 Cal.App.2d 729 EMERYVILLE, AVE., 12 & PARK KATZOFF Maystruck v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881 1500 13 Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982 14 Rogers v. Warden (1942) 20 Cal.2d 286 15 Sackett v. Wyatt (1973) 32 Cal.App.3d 592 16 Serrano v. Priest (1971) 5 Cal.3d 584 17 Stansfield v. Starkey (1990) 220.Cal.App.3d 59 18 Titus v. Canyon Lake Prop. Owners Assoc. (2004) 118 Cal.App.4th 906 Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 19 20 Statutes 21 CCP § 430.41 1,2 22 Other Authorities CACI 1901 ii MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC INTRODUCTION Without ever meeting defendant JEANNE MARTINEZ JACKSON (“Defendant”) or communicating with her in any way, Plaintiff WARREN WELSH (“Plaintiff”) sold a home (“the Property”) to her by unconditionally transferring to her a deed (“the Deed’) that specifically set forth the purchase price. As matter of law, the claims in his second amended complaint (“SAC”) for fraud and concealment fail where the SAC fails to allege - that Defendant ever communicated with Plaintiff in any way or had any special relationship with Plaintiff to support an obligation of disclosure. Because there is no possibility that Plaintiff can cure these fatal defects the Court 10 should sustain the demurrer without leave to amend. Because Plaintiffs equitable claims LLP 300 94608 11 in his SAC are based upon his allegations of fraud and concealment the Court should RIGGS SUITE (510) 597-1990 CA AVE., EMERYVILLE, 12 & likewise sustain these entirely derivative claims without leave to amend. PARK KATZOFF 1500 13 RELEVANT FACTS AND PROCEDURAL HISTORY 14 Plaintiff purchased the Property from Defendant in June 2017. On May 26, 2018 15 Plaintiff filed his initial complaint (“Complaint”) in this action. In September 2018, the 16 parties met and conferred as required by CCP § 430.41 regarding grounds for a demurrer 17 to the Complaint. In response, after a lengthy delay of some six months, Plaintiff 18 ultimately filed the FAC in March 2019. 19 The FAC removed language regarding three addendums to the agreement and has 20 failed to attach all three addendums described in the Complaint to the FAC. The FAC 21 refers to only a single Addendum. The FAC alleged that Defendant breached the 22 Addendum as opposed to the “Agreement and/or Addendum” as alleged in the Complaint. Defendant has at all times denied the validity of the Addendum. (FAC, 48.) The FAC l MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC removed prior causes of action for Reformation of Contract; Breach of Implied Contract; and Promissory Estoppel and added a cause of action for financial abuse of an elder adult. Defendant demurred to the FAC which the Court sustained with leave to amend in its order of September 28, 2019. On October 21, 2019 Plaintiff filed his SAC and served itby mail. On November 25, 2019 Defendant filed a declaration under CCP § 430.41 to extend the time to meet and confer regarding further demurrer to the SAC. ARGUMENT A demurrer tests the legal sufficiency of the factual allegations in a complaint. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) A complaint is subject 10 to demurrer when it fails to state a cause of action. (Code Civ. Proc. § 430.10(e).) If the LLP 300 94608 11 complaint fails to plead any essential element of a particular cause of action, then the RIGGS SUITE (510) 597-1990 CA AVE,, EMERYVILLE, 12 & demurrer should be sustained. (Linear Tech. Corp. v. Applied Materials, Inc. (2007) 152 PARK KATZOFF 1500 13 Cal.App.4th 115, 122.) 14 In ruling on a demurrer, the court should “treat the demurrer as admitting all 15 material facts properly pleaded, but not contentions, deductions or conclusions of fact or 16 law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Conclusory allegations that do not 17 have factual support are insufficient to support a cause of action, and are “fatal to the 18 complaint.” (Maystruck v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881, 888-889.) Any 19 “[djoubt in the complaint may be resolved against plaintiff and facts not alleged are 20 presumed not to exist.” (C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 21 1055, 1062.) A demurrer should be sustained without leave to amend if itdoes not appear 22 that there is any reasonable probability that the defects in the complaint can be cured by amendment. (Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 603.) “It is the plaintiff's 2 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC Y © burden to show either the trial court or the reviewing court how the complaint can be amended to state a cause of action.” (Titus v. Canyon Lake Prop. Owners Assoc. (2004) 118 Cal.App.4th 906, 917.) A plaintiff satisfies this burden “by showing in what manner ...the complaint can be amended and how that amendment will change the legal effect of the pleadings.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444 [noting that plaintiff “did not provide a proposed amendment to cure the faults of her second amended complaint and that omission alone supports the trial court’s order denying leave to amend”’].) A. The Cause of Action For Fraudulent Misrepresentation Fails as a Matter of Law Because It is Not Plead With Particularity. 10 LLP The seventh cause of action for intentional misrepresentation fails as a matter of 300 94608 11 RIGGS SUITE (510) 597-1990 CA law because it fails to plead all of the essential elements, let alone with the factual AVE., EMERYVILLE, 12 & PARK KATZOFF specificity required for a fraud or concealment claim. (Cooper v.Equity Gen. Ins. (1990) 1500 13 219 Cal.App.3d 1252, 1262 (“[E]very element of a cause of action for fraud must be 14 alleged both factually and specifically, and the policy of liberal construction of pleadings 15 will not be invoked to sustain a defective complaint.”). 16 When a complaint asserts a cause of action for fraud or deceit every element of 17. that cause of action must by “pleaded with specificity,” meaning that “a plaintiff must 18 allege facts showing how, when, where, to whom, and by what means the representations 19 were made.” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008.) 20 “The elements of promissory fraud ... are (1) a promise made regarding a material 21 fact without any intention of performing it;(2) the existence of the intent not to perform 22 at the time the promise was made; (3) intent to deceive or induce the promisee to enter 3 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e].” (Behnke v. State _ Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1453.) As with any other form of fraud, each element of a promissory fraud claim must be alleged with particularity. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1059- 1060.) This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The particularity requirement applies to each element of fraud, which must be pleaded “factually and specifically.” (Conrad v. Bank 10 of America (1996) 45 Cal.App.4th 133, 156.) LLP 300 94608 11 RIGGS SUITE Here, the SAC fails to allege all of these elements with the required particularity. (510) 597-1990 CA AVE., EMERYVILLE, 12 & The SAC fails to plead the exact content of the alleged misrepresentations, or how the PARK KATZOFF 1500 13 alleged misrepresentations were made, where they were made, and by what means they 14 were tendered. 15 In fact, the SAC does not allege that Defendant made any representations at all to 16 Plaintiff. The SAC § 20 vaguely asserts that there was “acts of acts of fraud-concealment 17 during negotiation of the Addendum” but failsto explain what these acts were. Paragraph 18 6 of the SAC fairs no better in generally alleging that “Plaintiff and Defendant negotiated 19 the terms of an Addendum” without explaining what was misrepresented during the 20 negotiations and how this was misrepresented. The general statement in J 6 of the SAC 21 that Plaintiff executed the Addendum “at Defendant’s request” fails to explain how, when 22 and where this request was communicated. Likewise the very general statements in { 58 that “[b]y way of their negotiations, Defendant induced Plaintiff to believe that she 4 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC would not only execute the Addendum” fails to explain with particularity what occurred in the “negotiations.” The allegations are not particular as to what the alleged misrepresentations were and how and when itDefendant communicated them to Plaintiff. As a matter of law, such general statements are insufficient to sustain a fraud cause of action for intentional misrepresentation. Based on the foregoing, the Court should dismiss the cause of action for fraud. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 75 (finding that trial court acted within its discretion in sustaining demurrers to “general and imprecise” fraud claims); Citizens 10 of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1,21 (finding that LLP 300 94608 il RIGGS SUITE trial court properly sustained demurrer to fraud claim because plaintiff's “allegations of (810) 597-1990 EMERYVILLE,CA AVE., 12 & fraud are precisely the sort of vague allegations that the particularity requirement is PARK KATZOFF 1500 13 intended to guard against.”); Gil v. Bank of America, National Association (2006) 138 14 Cal.App.4th 1371, 1381 (affirming dismissal of fraud claim because the “allegations are 15 simply not specific enough to show the factual basis of a fraud cause of action.”).) 16 The SAC improperly attempts to state a cause of action for fraud without ever 17 alleging that Defendant and Plaintiff ever communicated with one another in any way. 18 No amendment can cure this fatal defect because it isclear from the Complaint, the FAC 19 and the SAC that Plaintiffhas never even met Defendant or otherwise communicated with 20 her. As a matter of law, there can be no claim for fraudulent misrepresentation in such 21 circumstances. 22 5 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC . t B. The Court Should Sustain the Demurrer to the Cause of Action For Fraudulent Concealment Because It Fails to Plead Any Duty of Disclosure. The SAC fails to state a cause of action to allege for fraudulent concealment because the it does not allege facts establishing a duty on Defendant’s part to disclose. A complaint for fraud and deceit based on suppression of fact does not constitute a cause of action ifit fails to allege that a fact was suppressed by one who is bound to disclose it. (Lingsch v. Savage (1963) 213 Cal.App.2d 729, 738-739; Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d 1142, 1156.) In the absence of any showing that the defendant had a duty to speak, such as the existence of a confidential or fiduciary 10 relationship between the parties, the defendant is not bound to volunteer information LLP 300 94608 11 concerning the subject matter in dispute. (Carter v. Seaboard Fin. Co. (1949) 33 Cal.2d RIGGS SUITE (510) 597-1990 EMERYVILLE,CA AVE., 12 & 564, 569; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337.) A complaint for PARK KATZOFF 1500 13 fraud and deceit based on suppression of fact is not sufficient to constitute a cause of 14 action ifit does not allege that the other party gave information of other facts that were 15 likely to mislead for want of the communication of the suppressed fact. (Rogers v. 16 Warden (1942) 20 Cal.2d 286, 289-290.) Likewise, CACI 1901 that requires that a 17 Plaintiff support a concealment claim with allegations of a fiduciary relationship, e.g., 18 “business partners” or partial disclosure of facts but concealment of others. 19 Here, the SAC alleges that Defendant’s concealment is the same conduct as the 20 alleged breach of the Addendum. Under the apposite authority such allegations are not 21 sufficient. Because no confidential relationship existed between Defendant and Plaintiff, 22 this fatal defect cannot be cured by amendment. Accordingly, the Court should sustain the demurrer without leave to amend as to this cause of action. 6 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC . ‘ Cc. Because Plaintiff’s Fraud and Concealment Claims Fail as a Matter of Law, Plaintiff’s Related Equitable Claims for Rescission, Equitable Estoppel, Cancellation of Instruments, Quiet Title, Ejectment, Declaratory Relief and Accounting (“the Equitable Claims”) Also Fail as a Matter of Law. Despite being plead separately, the Equitable Claims in the SAC are entirely derivative of Plaintiff's claim for rescission. The SAC does not contain any separate factual allegations in support of the Equitable Claims that are different than those in support of the fraud and concealment claims. Here, the allegations of fraud in the SAC failas a matter of law. Under the apposite authority, as a matter of law, no belated allegation in the SAC regarding the breach of 10 the Addendum, gives rise to a claim for rescission. LLP 300 94608 11 The gravamen of all the Equitable Claims in the SAC is a claim for Rescission of RIGGS SUITE (510) 597-1990 EMERYVILLE,CA AVE., 12 & the transaction to sell the Property. The causes of action for Cancellation of the Deed PARK KATZOFF 1500 13 and Declaratory relief are, in all substance, requests to unwind the transaction. The same 14 is true of the Quiet Title and Ejectment claims. Because the Rescission claim fails as a 15 matter of law under the apposite authority, so to do the rest of the Equitable Claims. As 16 such, the Court should sustain the demurrer as to the Equitable Claims. Because this 17 fatal defect as to these claims cannot be cured by amendment, the Court should sustain 18 the demurrer without leave to amend. 19 CONCLUSION 20 Defendant respectfully requests the Court sustain the demurrer with leave to 21 amend. 22 7 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC Dated: January 10, 2020 KATZOFF & RIGGS LLP er -PREONAS Attorneys for Defendant JEANNE JACKSON MARTINEZ 10 LLP 300 94608 11 RIGGS SUITE (510) 597-1990 CA AVE., EMERYVILLE, 12 & PARK KATZOFF 1800 13 14 15 16 17 18 19 20 21 22 8 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC @ ‘ @ CIV-140 ATTORNEYORPARTYWITHOUTATTORNEY: STATEBARNO: 245334 FORCOURTUSE ONLY name:Stephen G. Preonas FIRMNAME:Katzoff & RiggsLLP STREETaDoRESS:1500 ParkAve, Suite300 city: Emeryville STATE: CA zIP CODE: 94608 TELEPHONENO: (610)597-1990 FAXNO: (510) 597-0295 E-MAIL ADDRESS:spreonas@katzoffriggs.com ATTORNEYFOR(Name): Defendant Jean MartinezJackson SUPERIOR COURT OF CALIFORNIA, COUNTY OFALAMEDA STREET ADDRESS: 1225 FallonStreet MAILING ADDRESS: city AND zIP CODE: Oakland,CA 94612-4293 BRANCHNAME: Rene C. Davidson Plaintiff/Petitioner: Warren PeterWelsh Defendant/Respondent: Jean Martinez Jackson,et al. DECLARATION OF DEMURRING OR MOVING PARTY REGARDING CASEMINBER: MEET AND CONFER RG18906355 To thepartyfiling a demurrer,motion tostrike, or motion for judgment on the pleadings:Thisformmust be filedwiththedemurrer, motion tostrike, ormotion for judgmenton thepleadings. 1. (Name of party making declaration): Jean Martinez Jackson was served with [__] acomplaint [-x_] anamended complaint [__] across-complaint [-"] ananswer [__] other (specify): intheabove-titledactionand isfilinga [xX] demurrer [7_] motion tostrike [7] motionforjudgment on thepleadings DECLARATION (Choose eithera.orb.) 2. a. [<) Atleast five days before thedatea responsive pleadingwas due tobe filed (if| amfiling a demurreror motiontostrike) orat leastfive days before filing amotion forjudgment on thepleadings(if!am filing amotion forjudgment onthe pleadings),| metand conferredwiththe partywho filed the pleading [[_] bytelephone [(_] inperson andwe didnot reachan agreement resolvingthemattersraisedby the demurrer,motionto strike, ormotion for judgment on the pleadings. b. [__] The partywho filed thepleading subjecttodemurrer,motion tostrike, or motionforjudgment on thepleadingsfailedto respond tomy requesttomeet and confer orotherwisefailedtomeet and conferingood faith. To provideadditional information,pleaseuse form MC-031, Attached Declaration. | declare under penaityofperjuryunder the lawsofthe Stateof California that the information above istrueand correct. Date: January10, 2020 Stephen G. Preonas (NAMEOFPARTYORATTORNEYFORPARTY) Sarbre OFPARTYOR ATTORNEY FORPARTY} Page10f 1 FormApproved for Optional Use Code of Civil Procedure, Judicial Council of California DEC LARATION OF DEMURRING OR MOVING PA RTY §§ 430.41, 435.6, 439 Clv-140 [Rev. January1, 2019] REGARDING MEET AND CONFER www. courts.ca.gov PROOF OF SERVICE I,the undersigned, declare that Iam, and was at the time of service of the papers herein referred to, over the age of eighteen (18) years and not a party to the within action or proceeding. I am employed in the County of Los Angeles, State of California. My business address is 1801 Century Park East, 25" Floor, Los Angeles, California 90067. I am familiar with the regular mail collection and processing practices of Katzoff & Riggs for correspondence deposited for mailing with the United States Postal Service. On the date set forth below, I served the following document(s): MEMORANDUM IN SUPPORT OF DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SECOND AMENDED COMPLAINT DECLARATION OF DEMURRING OR MOVING PARTY REGARDING MEET AND CONFER addressed to each such addressee respectively as follows: 10 Omar Krashna LLP Krashna Law Firm 300 94608 11 RIGGS SUITE 675 Hegenberger Road, Suite 260 (510) 597-1990 CA Oakland, CA 94621 AVE., EMERYVILLE, 12 & okrashnaf@vyahoo.com PARK KATZOFF krashnalaw@gmail.com 1500 13 I then served the addressees in the following manner: 14 [X] VIA HAND DELIVERY by causing a true copy and/or original thereof to be 15 placed in a sealed envelope and delivered via messenger to the addressee at the address above. 16 [X] VIA E-MAIL, by causing an electronic copy to be attached as a PDF to an e- 17 mail, addressed to the person(s) listed above at the e-mail address(es) listed above, and transmitting it via e-mail. 18 Ideclare under penalty of perjury, under the laws of the State of California and the 19 United States of America that the foregoing is true and correct. Executed on January 10, 2020 at Emeryville, California. 20 21 C{AMES BROWN 22 9 MEMO ISO DEMURRER OF DEFENDANT JEAN MARTINEZ JACKSON TO SAC