On February 03, 2017 a
Motion-Secondary
was filed
involving a dispute between
Capital Equity Management Group Inc,
and
Brenda Gillum,
Carter, Mary Rose,
Carter, William Keith,
Castleberry, George,
Castleberry, Richard,
Clements, Jamee Lynn,
Clements, Rick,
George Castleberry,
Gillum, Brenda,
Jamee Lynn Clements,
Kenneth A Swanger,
Mark Tillotson,
Mary Rose Carter,
Norcal Redevelopment Corp,
Northcutt, Richard,
Northern California Investments Lp,
Richard Castleberry,
Richard Northcutt,
Rick Clements,
Steven A Swanger,
Swan Construction,
Swanger, Kenneth A,
Swanger Properties Llc,
Swanger, Steven A,
Swan Investments Inc,
Tillotson, Mark,
William Keith Carter,
for Fraud: Unlimited
in the District Court of Stanislaus County.
Preview
6407tl7|38
GERALD E. BRUNN, SBN 107004
MAHANVIR S.
LAW OFFICES
SAHOTA, SBN 24550]
OF BRUNN & FLYNN
E: "
:l
“a
Fl,
._E '
t?)
A Professional Corporation
928 — 12th Street, suite 200 gun M79 ~L. P i2: 5|
Modesto, CA 95354
IPFDIAR
521—2133 CLERK 0F T‘r E_S}_‘Lt_pU COURT
Telephone: (209) i
a
COUHTY 0" bi’mla'wbf
Facsimile: (209) 521-7584
BY
l -
4g V
Attorneys for Defendant, MARK TILLOTSON
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF STANISLAUS
lO
ll CAPITOL EQUITY MANAGEMENT GROUP, Case N0. 20235 I 9
INC.
12
Plaintiff,
13
vs. MEMORANDUM OF POINTS AND
14 AUTHORITIES IN SUPPORT OF
STEVEN A. SWANGER; KENNETH A. DEMURRERS TO COMPLAINT
15 SWANGER; BRENDA GILLUM; RICK
CLEMENTS; SWAN CONSTRUCTION; Date : May 23, 2017
l6 SWAN INVESTMENTS, INC; SWANGER Time: 8:30 a.m.
PROPERTIES, LLC; NORTHERN Dept : 21
17 CALIFORNIA INVESTMENTS, L.P.;
NORCAL REDEVELOPMENT CORP;
18 RICHARD CASTLEBERRY; GEORGE
CASTLEBERRY; JAMIE LYNN CLEMENTS;
19 MARY ROSE CARTER; WILLIAM KEITH
CARTER; MARK TILLOTSON; RICHARD
2O NORTHCUT and DOES 1 TO 100, inclusive,
21 Defendants.
22
23 I. Introduction
24 Defendant MARK TILLOTSON (hereinafter, “TILLOTSON ”) demurs t0 plaintiff’s First,
25 Second, and Sixth causes ofaction. Plaintiff’s First Cause ofAction for Fraud is subject to a general
26 demurrer because i1lacks specific factual detail and is missing key elements for a fraud cause ofaction.
27 See, Goldrich v. Narural YSurgica! Specialties (1994) 25 Cal. App. 4th 772, 782; CACI 1900. This
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT
6407-l7l33
cause of action is also subject to a special demurrer for uncertainty because 0f the confusing nature 0f
plaintiff‘s allegations.
Plaintiff‘s Second Cause of Action for Civil Conspiracy is subject t0 a general demurrer because
it iswholly duplicative 0f its cause 0f action for fraud. See, Award Metals, Inc. v, Superior Court (1991)
228 Ca1.App.3d 1128, 1135. Civil conspiracy is not a separate cause ofaction and isunnecessary
because it ispied against the same defendants as the fraud cause of action.
Finally, plaintiff’s Sixth Cause of Action for Intentional Interference with Prospective Economic
Advantage fails to state a cause of action because there was no established relationship between plaintiff
and any third parties.
l0 I~I. Legal Authority for Demurrers
11 California Code 0f Civil Procedure §430.10 states, in relevant part:
12 The party against whom a complaint has been filed may object, by
demurrer t0 the pleading 0n any one 0r more 0fthe following grounds:
13
(e) The pleading does not state facts sufficient to constitute a cause
14 0f action.
(f) The pleading is uncertain. As used in this subdivision, uncertain
15 includes ambiguous and unintelligible.
16 A complaint is uncertain when, because 0f lack 0f clarity in pleading 0r inconsistency between
l7 allegations, its meaning is doubtful as t0 the theory Ofliability or basis 0f recovery 0r as t0 other material
18 matters. Crow v.Hildreth (1870) 39 Cal. 618, at page 620; Oppenheimer v. General Cable Corp. (1956)
l9 143 Cal.App.2d 293.
20 III. FRAUD
21 Plaintiff’s first cause ofaction for fraud fails t0 state a cause 0f action due to a lack ofany
22 specific details and fails due to uncertainty because itis not clear who did what and when and how the
23 alleged wrongful conduct occurred. The cause of action is conclusory and confusing for the reasons
24 discussed below.
25 A. Summary of Fraud Allegations.
26 Defendant TILLOTSON is grouped together with several other named defendants as the
27 “AGENT DEFENDANTS”. Compl. 11
2. Plaintiff alleges that it was engaged in the practice of buying
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MEMORANDle OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT
6407-17I38
distressed real estate from January 2009 to December 201 1.Compl. 119. The “AGENT DEFENDANTS”
allegedly were agents 0f plaintiff “tasked with seeking to purchase prOperties” for plaintiff. Compl. fl
10.
At the center 0fthe Fraud cause ofaction is paragraph 1l OfIhe Complaint which is,frankly,
difficult to follow. Plaintiff claims that “DEFENDANTS” entered into a “criminal conspiracy” in
regards t0 bids on real property. The AGENT DEFENDANTS were to bid 0n behalf 0f plaintiff but
“AGENT DEFENDANTS knowingly misstated the value and/or rehabilitation costs and 0r condition 0f
properties t0 PLAINTIFF t0 increase PLAINTIFF’S maximum bid price made bids and bought the
properties 0n behalfofone 0r more DEFENDANTS at 0r below the predetermined maximum bid price
ofPLAINTIFF.” Complfii 11.
10 These allegations are confusing because ifplaintiff’s maximum bid was made higher by the acts
ll 0f any defendant, then plaintiff’s chances ofobtaining any real property at auction would logically
12 increase. It isalso confusing because plaintiff fails t0 delineate a single, specific example ofthe alleged
13 actions. Plaintiff provides a four year Window of time (2009 t0 2013) without giving a single specific
14 example 0f the alleged wrongful conduct.
15 Plaintiff further alleges,
l6 “On or about the dates 0f each acquisition Identified in Exhibit A, the
AGENT DEFENDANTS who was supposed to bid at the various auctions
l7 PLAINTIFF’S
andlor private sales as an agent 0f PLAINTIFF, told
18
representative who tasked the particular AGENT DEFENDANT with
bidding 0n one 0f the properties, that the particular property was sold to an
19 umelated third party above the predetermined maximum bid price.
Comp]. fl 14.
20
Once again, plaintiff fails to provide any concrete details. Plaintiff fails 10 listeven one
21
“representative.” Plaintiff fails t0 specifically describe any alleged incident. Plaintiff fails t0 provide
22
23 any degree ofspecificity.
24 More confusing, plaintiff makes a conclusory allegation that the AGENT DEFENDANTS made
25
representations t0 plaintiff, that said defendants knew were false. However, plaintiff fails to describe
26
how it was damaged, that itrelied reasonably upon the representations, 0r that the reasonable reliance
27
was a substantial factor in causing harm. In fact, plaintiff does not even identify any damages. Much of
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0 COMPLAINT
MDT-I7l38
plaintiff’s first cause of action devolves into a discussion of agency and has nothing to do with
allegations of fraud.
B. Plaintiff’s fifth cause 0f action fails t0 state facts sufficient to constitute a cause 0f action
because it isdevoid ofspccific factual detail.
According 10 Goldrich v.Natural Y Surgical Specialties (1994) 25 Cal. App. 4th 772, 782,
Fraud must be pleaded with Specificity, to provide the defendants with the
fullest possible details 0f the charge so they are able t0 prepare a defense
to this serious attack. T0 withstand a demurrer, the facts constituting
every element 0f the fraud must be alleged with particularity, and the
claim cannot be salvaged by references to the genera] policy favoring the
liberal construction of pleadings.
10 The reason for the particularity requirement was explained in S(ansfield v. Sfarkey (1990) 220
ll Cal. App. 3d 59, 73, as follows:
12 rationale for "'strict requirement of pleading not
[T]he this (citation) is
merely notice to the defendant. "'The idea seems t0 be that allegations of
13
fraud involve a serious attack 0n character, and fairness t0 the defendant
l4 demands that he should receive the fullest possible details 0fthe charge in
order to prepare his defense.” (Ibid.)
15
Even the policy of liberal construction 0f pleadings does not apply in the context of fraud causes
16
Goldrich 25 Cal.App. 4‘“ 220 Cal.App.3d Cooper
of action. at 782; Stansfield v. Starkey (1990) 59, 73;
l7
18 v. Equity Gen. Ins. (1990) 219 Cal.App.3d 1252, 1262.
l9 Plaintiff‘s cause 0f action for fraud is wholly devoid 0f specific factual allegations. There is not a
20
single Specific example provided ofthe alleged fraudulent activity as required by law. Plaintiff provides
21
an exceedingly general and confusing summary 0f alleged acts involving multiple prepenies and multiple
22
persons but does not provide any details whatsoever.
23
C. The Fraud Cause of Action ismissing necessary elements.
24
25 The elements 0f Intentional Misrepresentation are set forth below:
26 1.That [name ofdefendant] represented to [name 0f plaintiff] that a fact
was true;
27
28
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0 COMPLAINT
@iDT-ITIZE
2.That [name of defendant]’s representation was false;
3.That [name 0f defendant] knew that the representation was false when
[he/she] made it,or that [he/she] made the representation recklessly and
without regard for itstruth;
4.That [name of defendant] intended that [name 0f plaintiff] rely on the
representation;
5.That [name 0f plaintiff] reasonably relied on [name ofdefendantfs
representation;
6.That [name 0f plaintiff] was harmed; and
7.That [name ot‘plaintiffl’s reliance 0n [name 0f defendant]’s
representation wasa substantial factor in causing [his/her/its] harm. CACI
lO
1900.
ll
12 The facts constituting every element 0f fraud must be alleged with particularity. Cadlo v. Owens—
13 Ill.,Inc. (2004) 125 Ca1.App.4th 513, 519. Plaintiff fails to make any allegations as t0 the last four
l4
elements listed above. There are no allegations of reasonable reliable 0r such reliance causing any
15
damages. Nor does plaintiff delineate clearly how itwas harmed by the alleged misrepresentations. As
l6
such, this cause of action issubject to a general demurrer as it does n01 state a cause ofaction.
l7
D. Plaintiff’s Fraud Cause ofAction fails due to uncertainty.
18
19 The lack 0f specificity renders the fraud cause of action uncertain and ambiguous. The confusion
2O iscompounded because plaintiff too often digresses 0n confusing tangents or non-sequiturs. For
21 example, plaintiff’s allegations regarding the “AGENT DEFENDANTS” and the bids at auction are
22
difficult t0 understand. It isnot clear how a higher maximum bid price for plaintiff would have resulted
23
in a failure t0 purchase. In addition, plaintiffs’ allegations within the fraud cause of action devolve into a
24
discussion 0f agency without clarifying the relevance 0f such a discussion.
25
Plaintiff‘s terminology further compounds the confusion because itdelineates several subgroups
26
27 ofdefendants that may 0r may not overlap. Thus, when plaintiffclaims that the “AGENT
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0 COMPLAINT
Mm ma
DEFENDANTS" bought properties for “DEFENDANTS” (Compl. fi]
1 I) itis not clear which named
defendants fall into one subgroup or the other.
It isdifficult to respond to the charges in the complaint given the confusion and uncertainty in the
pleadings.
IV. Plaintiff‘s 61v“ Conspiracy Cause 0f Action isduplicative of itsFraud Gause 0f Action.
A demurrer may bc sustained as t0 any action that is merely duplicative and adds nothing in the
way offact or theory. Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1 128, 1135. Plaintiff
alleges its first cause ofaction for fraud against all defendants. Plaintiff alleges its second cause of action
for civil conspiracy against all defendants. This second cause 0f action is superfluous and unnecessary
10
because a civil conspiracy is not a separate and distinct cause 0f action; instead, it relies upon the
ll underlying tort theory. One court explained as follows:
12 Conspiracy is not a cause of action, but a legal doctrine that imposes
liability on persons who, although not actually committing a tort
13 themselves, sharc with the immediate tortfeasors a common plan or design
in its perpetration. By participation in a civil conspiracy, a coconspirator
l4
effectively adopts as his 0r her own the torts of other coconspirators within
15 the ambit ofthe conspiracy. In thiswav, a coconspirator incurs tort
liability co-equal with the immediate tortfcasors.” Applied Equipment
l6 Corp. v. Lilian SaudiArabia Ltd. (1994) 7 Cal.4th 503, 510—511
l7 Plaintiff‘s second cause of action does not add any new defendants and is entirely superfluous as
18 itrestates the fraud cause of action. It istherefore subject to a general demurrer.
19 V. Plaintiff cannot allege Intentional Interference with Prospective Economic Relations
20 An action for Intentional Interference with Prospective Economic Relationships requires that there
21 was an established economic relationship, “. ..between the plaintiff and some third party, with the
22 probability offilture economic benefit to the plaintiff”; Youst v. Longo (1987) 43 Cal.3d 64, 71.
23 Defendant TILLOTSON is alleged to be an “AGENT DEFENDANT” 116.,a defendant who had a
24 fiduciary duty t0 plaintiff. Compl. 1]
24. Plaintiff alleges that TILLOTSON and other “AGENT
25 DEFENDANTS” did something that undermined plaintiff‘s ability Io buy certain real properties. Compi,
26 1 1.
1]
27
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MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT
6407-]7I38
In these circumstances, TILLOTSON cannot be subj ect t0 a cause of action for Intentional
Interference with Prospective Economic Advantage because he did n01 allegedly disrupt a known
contractual relationship. Plaintiff cannot establish this necessary element because itspecifically alleges
that there was n0 economic relationship between itand any third parties.
VI. Conclusion
For the reasons stated above, it isrespectfully requested that the couft sustain the demurrers t0
plaintiff‘s first, second, and sixth causes ofaction.
Dated: April 4, 2017 LAW OFFICES OF BR
A Professional Corpo
10
11
By: -
12 MAHANVIR S. SAHOTA,
Attorneys for Defendant, MARK TILLOTSON
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P&A
K:\docs\CASES\380- 15184\PLEADINGS\Dcmuner
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7
MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEMURRERS To COMPLAINT
PROOFOFSERVKEJ
(C.C.P. §§1013a, 2015.5)
STATE BI? CALIFORNIA
COUNTY OF STANISLAUS }
l CINDY SMITH, declare that:
I am employed in the County of‘ Stanislaus, California. I am over the age of eighteen (18) years and
not a pafly to the within action. My business address is 928 12th Street, Suite 200, Modesto, California, 95354.
On April 4, 201 7, I served the following document(s):
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0
COMPLAINT
by placing a true and comet copy thereei‘ enclosed in a sealed envelope and sawed in the manner andfor
manners described below t0 each ofthc party(ics) addressed below:
1_0 Michael J. Dyer
Dustin J. Dyer
11 DYER LAW FIRM
5250 Claremcnt Ave, Ste. 11-9
12 Stockton, CA 95207
(209) 472-3668
13 (209) 472-3675 — Fax
ddver(a}dyerlawfirm.com
14
XXX BY MAIL: U.S. Postal Service by placing such envelope(s) with postage thereon fully prepaid
15 in the designated area for qut‘going mail inaccordance with this office’s practice, whereby the
mail is deposited in a U.S. Mailbox in the City of Modesto, California after the close of the
V day’s business.
16
17 BY HAND DELIVERY: Icaused said envelope(s) to be delivered by hand to the
addressee(s) designated.
18
BY OVERNIGHT COURIER SERVICE: Icaused said envcl‘ope(s) to be delivered via
overnight courier service to the addressce(s) designated.
19
BY FACSIMILE: I caused said document(s) to be transmitted to the telephone number(s)
20 of the addressee(s) designated above.
21 BY ELECTRONIC MAIL: Icaused said document(s) to bc transmitted electronically to
the addressee(s) designated above.
22
I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true
23 and con’eqt.
'
Ex’recutedon April 4, 2017 at Modesto, California.
24
25
26
W553
CINDY W4
27
28
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PROOF 0F SERVICE
Preview
6407tl7|38 GERALD E. BRUNN, SBN 107004 MAHANVIR S. LAW OFFICES SAHOTA, SBN 24550] OF BRUNN & FLYNN E: " :l “a Fl, ._E ' t?) A Professional Corporation 928 — 12th Street, suite 200 gun M79 ~L. P i2: 5| Modesto, CA 95354 IPFDIAR 521—2133 CLERK 0F T‘r E_S}_‘Lt_pU COURT Telephone: (209) i a COUHTY 0" bi’mla'wbf Facsimile: (209) 521-7584 BY l - 4g V Attorneys for Defendant, MARK TILLOTSON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF STANISLAUS lO ll CAPITOL EQUITY MANAGEMENT GROUP, Case N0. 20235 I 9 INC. 12 Plaintiff, 13 vs. MEMORANDUM OF POINTS AND 14 AUTHORITIES IN SUPPORT OF STEVEN A. SWANGER; KENNETH A. DEMURRERS TO COMPLAINT 15 SWANGER; BRENDA GILLUM; RICK CLEMENTS; SWAN CONSTRUCTION; Date : May 23, 2017 l6 SWAN INVESTMENTS, INC; SWANGER Time: 8:30 a.m. PROPERTIES, LLC; NORTHERN Dept : 21 17 CALIFORNIA INVESTMENTS, L.P.; NORCAL REDEVELOPMENT CORP; 18 RICHARD CASTLEBERRY; GEORGE CASTLEBERRY; JAMIE LYNN CLEMENTS; 19 MARY ROSE CARTER; WILLIAM KEITH CARTER; MARK TILLOTSON; RICHARD 2O NORTHCUT and DOES 1 TO 100, inclusive, 21 Defendants. 22 23 I. Introduction 24 Defendant MARK TILLOTSON (hereinafter, “TILLOTSON ”) demurs t0 plaintiff’s First, 25 Second, and Sixth causes ofaction. Plaintiff’s First Cause ofAction for Fraud is subject to a general 26 demurrer because i1lacks specific factual detail and is missing key elements for a fraud cause ofaction. 27 See, Goldrich v. Narural YSurgica! Specialties (1994) 25 Cal. App. 4th 772, 782; CACI 1900. This 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT 6407-l7l33 cause of action is also subject to a special demurrer for uncertainty because 0f the confusing nature 0f plaintiff‘s allegations. Plaintiff‘s Second Cause of Action for Civil Conspiracy is subject t0 a general demurrer because it iswholly duplicative 0f its cause 0f action for fraud. See, Award Metals, Inc. v, Superior Court (1991) 228 Ca1.App.3d 1128, 1135. Civil conspiracy is not a separate cause ofaction and isunnecessary because it ispied against the same defendants as the fraud cause of action. Finally, plaintiff’s Sixth Cause of Action for Intentional Interference with Prospective Economic Advantage fails to state a cause of action because there was no established relationship between plaintiff and any third parties. l0 I~I. Legal Authority for Demurrers 11 California Code 0f Civil Procedure §430.10 states, in relevant part: 12 The party against whom a complaint has been filed may object, by demurrer t0 the pleading 0n any one 0r more 0fthe following grounds: 13 (e) The pleading does not state facts sufficient to constitute a cause 14 0f action. (f) The pleading is uncertain. As used in this subdivision, uncertain 15 includes ambiguous and unintelligible. 16 A complaint is uncertain when, because 0f lack 0f clarity in pleading 0r inconsistency between l7 allegations, its meaning is doubtful as t0 the theory Ofliability or basis 0f recovery 0r as t0 other material 18 matters. Crow v.Hildreth (1870) 39 Cal. 618, at page 620; Oppenheimer v. General Cable Corp. (1956) l9 143 Cal.App.2d 293. 20 III. FRAUD 21 Plaintiff’s first cause ofaction for fraud fails t0 state a cause 0f action due to a lack ofany 22 specific details and fails due to uncertainty because itis not clear who did what and when and how the 23 alleged wrongful conduct occurred. The cause of action is conclusory and confusing for the reasons 24 discussed below. 25 A. Summary of Fraud Allegations. 26 Defendant TILLOTSON is grouped together with several other named defendants as the 27 “AGENT DEFENDANTS”. Compl. 11 2. Plaintiff alleges that it was engaged in the practice of buying 28 2 MEMORANDle OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT 6407-17I38 distressed real estate from January 2009 to December 201 1.Compl. 119. The “AGENT DEFENDANTS” allegedly were agents 0f plaintiff “tasked with seeking to purchase prOperties” for plaintiff. Compl. fl 10. At the center 0fthe Fraud cause ofaction is paragraph 1l OfIhe Complaint which is,frankly, difficult to follow. Plaintiff claims that “DEFENDANTS” entered into a “criminal conspiracy” in regards t0 bids on real property. The AGENT DEFENDANTS were to bid 0n behalf 0f plaintiff but “AGENT DEFENDANTS knowingly misstated the value and/or rehabilitation costs and 0r condition 0f properties t0 PLAINTIFF t0 increase PLAINTIFF’S maximum bid price made bids and bought the properties 0n behalfofone 0r more DEFENDANTS at 0r below the predetermined maximum bid price ofPLAINTIFF.” Complfii 11. 10 These allegations are confusing because ifplaintiff’s maximum bid was made higher by the acts ll 0f any defendant, then plaintiff’s chances ofobtaining any real property at auction would logically 12 increase. It isalso confusing because plaintiff fails t0 delineate a single, specific example ofthe alleged 13 actions. Plaintiff provides a four year Window of time (2009 t0 2013) without giving a single specific 14 example 0f the alleged wrongful conduct. 15 Plaintiff further alleges, l6 “On or about the dates 0f each acquisition Identified in Exhibit A, the AGENT DEFENDANTS who was supposed to bid at the various auctions l7 PLAINTIFF’S andlor private sales as an agent 0f PLAINTIFF, told 18 representative who tasked the particular AGENT DEFENDANT with bidding 0n one 0f the properties, that the particular property was sold to an 19 umelated third party above the predetermined maximum bid price. Comp]. fl 14. 20 Once again, plaintiff fails to provide any concrete details. Plaintiff fails 10 listeven one 21 “representative.” Plaintiff fails t0 specifically describe any alleged incident. Plaintiff fails t0 provide 22 23 any degree ofspecificity. 24 More confusing, plaintiff makes a conclusory allegation that the AGENT DEFENDANTS made 25 representations t0 plaintiff, that said defendants knew were false. However, plaintiff fails to describe 26 how it was damaged, that itrelied reasonably upon the representations, 0r that the reasonable reliance 27 was a substantial factor in causing harm. In fact, plaintiff does not even identify any damages. Much of 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0 COMPLAINT MDT-I7l38 plaintiff’s first cause of action devolves into a discussion of agency and has nothing to do with allegations of fraud. B. Plaintiff’s fifth cause 0f action fails t0 state facts sufficient to constitute a cause 0f action because it isdevoid ofspccific factual detail. According 10 Goldrich v.Natural Y Surgical Specialties (1994) 25 Cal. App. 4th 772, 782, Fraud must be pleaded with Specificity, to provide the defendants with the fullest possible details 0f the charge so they are able t0 prepare a defense to this serious attack. T0 withstand a demurrer, the facts constituting every element 0f the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the genera] policy favoring the liberal construction of pleadings. 10 The reason for the particularity requirement was explained in S(ansfield v. Sfarkey (1990) 220 ll Cal. App. 3d 59, 73, as follows: 12 rationale for "'strict requirement of pleading not [T]he this (citation) is merely notice to the defendant. "'The idea seems t0 be that allegations of 13 fraud involve a serious attack 0n character, and fairness t0 the defendant l4 demands that he should receive the fullest possible details 0fthe charge in order to prepare his defense.” (Ibid.) 15 Even the policy of liberal construction 0f pleadings does not apply in the context of fraud causes 16 Goldrich 25 Cal.App. 4‘“ 220 Cal.App.3d Cooper of action. at 782; Stansfield v. Starkey (1990) 59, 73; l7 18 v. Equity Gen. Ins. (1990) 219 Cal.App.3d 1252, 1262. l9 Plaintiff‘s cause 0f action for fraud is wholly devoid 0f specific factual allegations. There is not a 20 single Specific example provided ofthe alleged fraudulent activity as required by law. Plaintiff provides 21 an exceedingly general and confusing summary 0f alleged acts involving multiple prepenies and multiple 22 persons but does not provide any details whatsoever. 23 C. The Fraud Cause of Action ismissing necessary elements. 24 25 The elements 0f Intentional Misrepresentation are set forth below: 26 1.That [name ofdefendant] represented to [name 0f plaintiff] that a fact was true; 27 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0 COMPLAINT @iDT-ITIZE 2.That [name of defendant]’s representation was false; 3.That [name 0f defendant] knew that the representation was false when [he/she] made it,or that [he/she] made the representation recklessly and without regard for itstruth; 4.That [name of defendant] intended that [name 0f plaintiff] rely on the representation; 5.That [name 0f plaintiff] reasonably relied on [name ofdefendantfs representation; 6.That [name 0f plaintiff] was harmed; and 7.That [name ot‘plaintiffl’s reliance 0n [name 0f defendant]’s representation wasa substantial factor in causing [his/her/its] harm. CACI lO 1900. ll 12 The facts constituting every element 0f fraud must be alleged with particularity. Cadlo v. Owens— 13 Ill.,Inc. (2004) 125 Ca1.App.4th 513, 519. Plaintiff fails to make any allegations as t0 the last four l4 elements listed above. There are no allegations of reasonable reliable 0r such reliance causing any 15 damages. Nor does plaintiff delineate clearly how itwas harmed by the alleged misrepresentations. As l6 such, this cause of action issubject to a general demurrer as it does n01 state a cause ofaction. l7 D. Plaintiff’s Fraud Cause ofAction fails due to uncertainty. 18 19 The lack 0f specificity renders the fraud cause of action uncertain and ambiguous. The confusion 2O iscompounded because plaintiff too often digresses 0n confusing tangents or non-sequiturs. For 21 example, plaintiff’s allegations regarding the “AGENT DEFENDANTS” and the bids at auction are 22 difficult t0 understand. It isnot clear how a higher maximum bid price for plaintiff would have resulted 23 in a failure t0 purchase. In addition, plaintiffs’ allegations within the fraud cause of action devolve into a 24 discussion 0f agency without clarifying the relevance 0f such a discussion. 25 Plaintiff‘s terminology further compounds the confusion because itdelineates several subgroups 26 27 ofdefendants that may 0r may not overlap. Thus, when plaintiffclaims that the “AGENT 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0 COMPLAINT Mm ma DEFENDANTS" bought properties for “DEFENDANTS” (Compl. fi] 1 I) itis not clear which named defendants fall into one subgroup or the other. It isdifficult to respond to the charges in the complaint given the confusion and uncertainty in the pleadings. IV. Plaintiff‘s 61v“ Conspiracy Cause 0f Action isduplicative of itsFraud Gause 0f Action. A demurrer may bc sustained as t0 any action that is merely duplicative and adds nothing in the way offact or theory. Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1 128, 1135. Plaintiff alleges its first cause ofaction for fraud against all defendants. Plaintiff alleges its second cause of action for civil conspiracy against all defendants. This second cause 0f action is superfluous and unnecessary 10 because a civil conspiracy is not a separate and distinct cause 0f action; instead, it relies upon the ll underlying tort theory. One court explained as follows: 12 Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort 13 themselves, sharc with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a coconspirator l4 effectively adopts as his 0r her own the torts of other coconspirators within 15 the ambit ofthe conspiracy. In thiswav, a coconspirator incurs tort liability co-equal with the immediate tortfcasors.” Applied Equipment l6 Corp. v. Lilian SaudiArabia Ltd. (1994) 7 Cal.4th 503, 510—511 l7 Plaintiff‘s second cause of action does not add any new defendants and is entirely superfluous as 18 itrestates the fraud cause of action. It istherefore subject to a general demurrer. 19 V. Plaintiff cannot allege Intentional Interference with Prospective Economic Relations 20 An action for Intentional Interference with Prospective Economic Relationships requires that there 21 was an established economic relationship, “. ..between the plaintiff and some third party, with the 22 probability offilture economic benefit to the plaintiff”; Youst v. Longo (1987) 43 Cal.3d 64, 71. 23 Defendant TILLOTSON is alleged to be an “AGENT DEFENDANT” 116.,a defendant who had a 24 fiduciary duty t0 plaintiff. Compl. 1] 24. Plaintiff alleges that TILLOTSON and other “AGENT 25 DEFENDANTS” did something that undermined plaintiff‘s ability Io buy certain real properties. Compi, 26 1 1. 1] 27 28 6 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS TO COMPLAINT 6407-]7I38 In these circumstances, TILLOTSON cannot be subj ect t0 a cause of action for Intentional Interference with Prospective Economic Advantage because he did n01 allegedly disrupt a known contractual relationship. Plaintiff cannot establish this necessary element because itspecifically alleges that there was n0 economic relationship between itand any third parties. VI. Conclusion For the reasons stated above, it isrespectfully requested that the couft sustain the demurrers t0 plaintiff‘s first, second, and sixth causes ofaction. Dated: April 4, 2017 LAW OFFICES OF BR A Professional Corpo 10 11 By: - 12 MAHANVIR S. SAHOTA, Attorneys for Defendant, MARK TILLOTSON l3 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 P&A K:\docs\CASES\380- 15184\PLEADINGS\Dcmuner - 28 7 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEMURRERS To COMPLAINT PROOFOFSERVKEJ (C.C.P. §§1013a, 2015.5) STATE BI? CALIFORNIA COUNTY OF STANISLAUS } l CINDY SMITH, declare that: I am employed in the County of‘ Stanislaus, California. I am over the age of eighteen (18) years and not a pafly to the within action. My business address is 928 12th Street, Suite 200, Modesto, California, 95354. On April 4, 201 7, I served the following document(s): MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRERS T0 COMPLAINT by placing a true and comet copy thereei‘ enclosed in a sealed envelope and sawed in the manner andfor manners described below t0 each ofthc party(ics) addressed below: 1_0 Michael J. Dyer Dustin J. Dyer 11 DYER LAW FIRM 5250 Claremcnt Ave, Ste. 11-9 12 Stockton, CA 95207 (209) 472-3668 13 (209) 472-3675 — Fax ddver(a}dyerlawfirm.com 14 XXX BY MAIL: U.S. Postal Service by placing such envelope(s) with postage thereon fully prepaid 15 in the designated area for qut‘going mail inaccordance with this office’s practice, whereby the mail is deposited in a U.S. Mailbox in the City of Modesto, California after the close of the V day’s business. 16 17 BY HAND DELIVERY: Icaused said envelope(s) to be delivered by hand to the addressee(s) designated. 18 BY OVERNIGHT COURIER SERVICE: Icaused said envcl‘ope(s) to be delivered via overnight courier service to the addressce(s) designated. 19 BY FACSIMILE: I caused said document(s) to be transmitted to the telephone number(s) 20 of the addressee(s) designated above. 21 BY ELECTRONIC MAIL: Icaused said document(s) to bc transmitted electronically to the addressee(s) designated above. 22 I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true 23 and con’eqt. ' Ex’recutedon April 4, 2017 at Modesto, California. 24 25 26 W553 CINDY W4 27 28 l PROOF 0F SERVICE