Preview
1 Bryan L. Saalfeld - 243331
BSaalfeld@mpbf.com
2 Thomas F. Mazzucco - 306681
TFMazzucco@mpbf.com
3 MURPHY, PEARSON, BRADLEY & FEENEY
580 California Street, Suite 1100
4 San Francisco, CA 94104-1001
Telephone: (415) 788-1900
5 Facsimile: (415) 393-8087
6 Attorneys for Defendant
FP TRANSITIONS, LLC
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF MONTEREY
10
11 INDEPENDENT FINANCIAL GROUP, LLC, Case No.: 21CV001264
on its own behalf and as assignee of Adolfo
12 Artalejo; Rod Belton and Nancy Belton; James DEFENDANT FP TRANSITIONS REPLY
Cornelius and June Cornelius; John Favero and IN SUPPORT OF DEMURRER TO
13 Philayna Favero; Ray Moncada and Vinnie PLAINTIFFS' SECOND AMENDED
Moncada; Sheryl Peck; Juanita Stoddard; Ron COMPLAINT
14 Taylor and Hazel Taylor; Jane Beery; Joy
Chandler; John Day; Sim Granoff and Virginia
15 Lott; Gretchen Jackson; William Miller and
Sharon Miller; Darryl Prudden; Carolyn Rice; Date: March 11, 2022
16 John Romero and Sandy Romero; Bennie Hill Time: 8:30 a.m.
and Lynda Hill; Ellen Koskinen; George Lynch Dept.: 14
17 and Helen Lynch; Mathew Panziera and Jamie Judge: Hon. Carrie M. Panetta
Panziera; and Tom Sgheiza and Mary Sgheiza, Via Zoom–TBA
18
Plaintiff, Complaint Filed: April 15, 2021
19 Trial Date: None Set
v.
20
FP TRANSITIONS, LLC and DOES 1-50,
21 INCLUSIVE,
22 Defendants.
23
24
25
26
27
28
-1-
DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER
1 I. INTRODUCTION.
2 Plaintiffs’ opposition to the Defendant’s Demurrer attempts to plead facts not contained in any
3 of the three complaints Plaintiff has filed in the last eleven months. Based upon the allegations in
4 Plaintiff INDEPENDENT FINANCIAL GROUP, LLC (“IFG”) and Assignors’1 Second Amended
5 Complaint, Defendant FP TRANSITIONS, LLC bears no connection nor fault for the unforeseeable bad
6 acts of Perry Santillo which resulted in the fraudulent conversion of investors’ assets previously overseen
7 by David Marshall and broker-dealer IFG.
8 Accordingly, Defendant FP Transitions’ demurrer to Plaintiff’s cause of action for negligent
9 misrepresentation in Plaintiff’s Second Amended Complaint should be sustained without leave to amend.
10 II. PLAINTIFF’S CAUSE OF ACTIONS FOR NEGLIGENT MISREPRESENTATION
HASN’T BEEN PLEAD WITH REQUISITE SPECIFICITY.
11
12 A. Including Facts Not Plead in Any of Its Three Complaints in Its Opposition Does Not
Cure Plaintiff’s Failure to Adequate Plead Negligent Misrepresentation.
13
14 Despite attempting to argue facts not included in any of its three complaints in its opposition,
15 Plaintiff’s cause of action for negligent misrepresentation in its Second Amended Complaint still fails
16 because Plaintiff’s Second Amended Complaint does not state facts sufficient to constitute a cause of
17 action and is uncertain and pursuant to CCP § 430.10 should be dismissed.
18 As stated in Defendant’s demurrer, Plaintiff’s cause of action for negligent misrepresentation has
19 not been adequately plead and is uncertain. Negligent misrepresentation requires (1) a misrepresentation
20 of a material fact, (2) which is made without reasonable grounds for believing it to be true, (3) with the
21 intent to induce reliance on the misrepresented fact, (4) that justifiable reliance occurs, and (5) resulting
22 damage. (See Ragland v. U.S. Bank Nat’l Ass’n, 209 Cal.App.4th 182, 196 (Cal. Ct. App. 2012).)
23 Liability for negligent misrepresentation is imposed only on those who supply information for business
24 purposes in the course of a business or profession. (Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins.
25 Assocs., Inc., (2004) 115 Cal.App.4th 1145, 1154.) “[T]he basis for liability in misrepresentation by
26 1
Assignors to IFG collectively are Adolfo Artalejo, Rod and Nancy Belton, James and June Cornelius, John
and Philayna Favero, Ray and Vinnie Moncada, Sheryl Peck, Juanita Stoddard, Ron and Hazel Taylor, Jane
27 Beery, Joy Chandler, John Day, Sim Granoff and Virginia Lott, Gretchen Jackson, William and Sharon Miller,
Darryl Prudden, Carolyn Rice, John and Sandy Romero, Bennie Hill and Lynda Hill, Ellen Koskinen, George
28 Lynch and Helen Lynch, Matthew Panziera and Jamie Panziera, and Tom Sgheiza and Mary Sgheiza .
-2-
DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER
1 those in the business of providing information is negligence.” (Id., citing Williams v. Wells & Bennett
2 Realtors, (1997) 52 Cal.App.4th 857, 864.)
3 Plaintiff fails to adequately allege any false statements or misleading comments to support their
4 claims of negligence misrepresentation. In fact, no specific false representations, or omissions on the
5 part of FP Transitions designed to induce IFG’s or Assignor’s justifiable reliance are alleged. The
6 Complaint does not provide any actual description or factual details regarding “what was said, when it
7 was said, or by whom,” as required. Plaintiff continues to only offer a generalized statement that FP
8 Transitions identified and endorsed Perry Santillo as a qualified, trustworthy and experienced buyer to
9 David Marshall. Plaintiff additionally fails to plead anything with respect how this generalized statement
10 about FP Transitions was made without reasonable grounds for believing it to be true.
11 In opposition to Defendant’s demurrer, Plaintiff cites once from its complaint in conclusory
12 fashion and then provides paragraphs of allegations never plead in any of the three complaints Plaintiff
13 has filed to date. The Court previously sustained Defendant’s demurrer to this cause of action on the
14 grounds that it failed to state facts sufficient to constitute a cause of action, and this amended pleading
15 remains substantially the same as before.
16 Since IFG and Assignors have failed to adequately plead negligent misrepresentation and the
17 Complaint does not state facts sufficient to constitute a cause of action and is uncertain, itshould be
18 dismissed.
19 B. IFG and Assignors Have Failed to Adequately Plead Negligent Misrepresentation Three
Times and Additional Amendment Would Be Futile.
20
21 [I]f a plaintiff pleads a claim that fails to state a cause of action, a demurrer is properly
22 sustained[.]” (Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212, 1225.) Leave to amend
23 should not be granted where ... amendment would be futile. (Redfearn, 20 Cal.App.5th at 997.) IFG
24 and Assignors have filed three complaints in this action, with this Court sustaining Defendant’s demurrer
25 as to Plaintiff’s cause of action for negligent misrepresentation in Plaintiff’s First Amended Complaint
26 on the grounds it failed to state facts sufficient to constitute a cause of action and was uncertain. Plaintiff
27 still fails to adequately plead a cause of action for negligent misrepresentation against FP Transitions
28 and a fourth bite at the proverbial apple by Plaintiff would be futile. As such, Defendant’s demurrer
-3-
DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER
1 should be sustained without leave to amend.
2 III. CONCLUSION.
3 Therefore, for each of the reasons discussed in the Demurrer and this Reply, Defendant requests
4 that this Court sustain Defendant FP Transitions, LLC’s demurrer to Plaintiff’s cause of action for
5 negligent misrepresentation in Plaintiff’s Second Amended Complaint without leave to amend.
6
7 DATED: March 4, 2022
MURPHY, PEARSON, BRADLEY & FEENEY
8
9
By
10 Bryan L.P. Saalfeld
Thomas F. Mazzucco
11 Attorneys for Defendant
FP TRANSITIONS, LLC
12
13 AGM.4282899.docx
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER
1 CERTIFICATE OF SERVICE
2 I, Linda J. Currid, declare:
3 I am a citizen of the United States, am over the age of eighteen years, and am not a party to or
4 interested in the within entitled cause. My business address is 580 California Street, Suite 1100, San
5 Francisco, California 94104.
6 On March 4, 2022, I served the following document(s) on the parties in the within action:
7 DEFENDANT FP TRANSITIONS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS'
SECOND AMENDED COMPLAINT
8
9 VIA E-MAIL: I attached the above-described document(s) to an e-mail message, and
X invoked the send command to transmit the e-mail message to the person(s) at the e-mail
10 address(es) listed below. My email address is lcurrid@mpbf.com.
11
Rick Smith Attorney For Plaintiff
12 Markun Zusman Freniere & Compton LLP INDEPENDENT FINANCIAL GROUP,
465 California Street, Suite 401 LLC, ET AL.
13 San Francisco, CA 94104
E-mail: rsmith@mzclaw.com
14 Phone: (415) 438-4388
Fax: (415) 434-4505
15
16 I declare under penalty of perjury under the laws of the State of California that the foregoing is
17 a true and correct statement and that this Certificate was executed on March 4, 2022.
18
By
19 Linda J. Currid
20
21
22
23
24
25
26
27
28
-5-
DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER
Preview
1 Bryan L. Saalfeld - 243331 BSaalfeld@mpbf.com 2 Thomas F. Mazzucco - 306681 TFMazzucco@mpbf.com 3 MURPHY, PEARSON, BRADLEY & FEENEY 580 California Street, Suite 1100 4 San Francisco, CA 94104-1001 Telephone: (415) 788-1900 5 Facsimile: (415) 393-8087 6 Attorneys for Defendant FP TRANSITIONS, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF MONTEREY 10 11 INDEPENDENT FINANCIAL GROUP, LLC, Case No.: 21CV001264 on its own behalf and as assignee of Adolfo 12 Artalejo; Rod Belton and Nancy Belton; James DEFENDANT FP TRANSITIONS REPLY Cornelius and June Cornelius; John Favero and IN SUPPORT OF DEMURRER TO 13 Philayna Favero; Ray Moncada and Vinnie PLAINTIFFS' SECOND AMENDED Moncada; Sheryl Peck; Juanita Stoddard; Ron COMPLAINT 14 Taylor and Hazel Taylor; Jane Beery; Joy Chandler; John Day; Sim Granoff and Virginia 15 Lott; Gretchen Jackson; William Miller and Sharon Miller; Darryl Prudden; Carolyn Rice; Date: March 11, 2022 16 John Romero and Sandy Romero; Bennie Hill Time: 8:30 a.m. and Lynda Hill; Ellen Koskinen; George Lynch Dept.: 14 17 and Helen Lynch; Mathew Panziera and Jamie Judge: Hon. Carrie M. Panetta Panziera; and Tom Sgheiza and Mary Sgheiza, Via Zoom–TBA 18 Plaintiff, Complaint Filed: April 15, 2021 19 Trial Date: None Set v. 20 FP TRANSITIONS, LLC and DOES 1-50, 21 INCLUSIVE, 22 Defendants. 23 24 25 26 27 28 -1- DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER 1 I. INTRODUCTION. 2 Plaintiffs’ opposition to the Defendant’s Demurrer attempts to plead facts not contained in any 3 of the three complaints Plaintiff has filed in the last eleven months. Based upon the allegations in 4 Plaintiff INDEPENDENT FINANCIAL GROUP, LLC (“IFG”) and Assignors’1 Second Amended 5 Complaint, Defendant FP TRANSITIONS, LLC bears no connection nor fault for the unforeseeable bad 6 acts of Perry Santillo which resulted in the fraudulent conversion of investors’ assets previously overseen 7 by David Marshall and broker-dealer IFG. 8 Accordingly, Defendant FP Transitions’ demurrer to Plaintiff’s cause of action for negligent 9 misrepresentation in Plaintiff’s Second Amended Complaint should be sustained without leave to amend. 10 II. PLAINTIFF’S CAUSE OF ACTIONS FOR NEGLIGENT MISREPRESENTATION HASN’T BEEN PLEAD WITH REQUISITE SPECIFICITY. 11 12 A. Including Facts Not Plead in Any of Its Three Complaints in Its Opposition Does Not Cure Plaintiff’s Failure to Adequate Plead Negligent Misrepresentation. 13 14 Despite attempting to argue facts not included in any of its three complaints in its opposition, 15 Plaintiff’s cause of action for negligent misrepresentation in its Second Amended Complaint still fails 16 because Plaintiff’s Second Amended Complaint does not state facts sufficient to constitute a cause of 17 action and is uncertain and pursuant to CCP § 430.10 should be dismissed. 18 As stated in Defendant’s demurrer, Plaintiff’s cause of action for negligent misrepresentation has 19 not been adequately plead and is uncertain. Negligent misrepresentation requires (1) a misrepresentation 20 of a material fact, (2) which is made without reasonable grounds for believing it to be true, (3) with the 21 intent to induce reliance on the misrepresented fact, (4) that justifiable reliance occurs, and (5) resulting 22 damage. (See Ragland v. U.S. Bank Nat’l Ass’n, 209 Cal.App.4th 182, 196 (Cal. Ct. App. 2012).) 23 Liability for negligent misrepresentation is imposed only on those who supply information for business 24 purposes in the course of a business or profession. (Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. 25 Assocs., Inc., (2004) 115 Cal.App.4th 1145, 1154.) “[T]he basis for liability in misrepresentation by 26 1 Assignors to IFG collectively are Adolfo Artalejo, Rod and Nancy Belton, James and June Cornelius, John and Philayna Favero, Ray and Vinnie Moncada, Sheryl Peck, Juanita Stoddard, Ron and Hazel Taylor, Jane 27 Beery, Joy Chandler, John Day, Sim Granoff and Virginia Lott, Gretchen Jackson, William and Sharon Miller, Darryl Prudden, Carolyn Rice, John and Sandy Romero, Bennie Hill and Lynda Hill, Ellen Koskinen, George 28 Lynch and Helen Lynch, Matthew Panziera and Jamie Panziera, and Tom Sgheiza and Mary Sgheiza . -2- DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER 1 those in the business of providing information is negligence.” (Id., citing Williams v. Wells & Bennett 2 Realtors, (1997) 52 Cal.App.4th 857, 864.) 3 Plaintiff fails to adequately allege any false statements or misleading comments to support their 4 claims of negligence misrepresentation. In fact, no specific false representations, or omissions on the 5 part of FP Transitions designed to induce IFG’s or Assignor’s justifiable reliance are alleged. The 6 Complaint does not provide any actual description or factual details regarding “what was said, when it 7 was said, or by whom,” as required. Plaintiff continues to only offer a generalized statement that FP 8 Transitions identified and endorsed Perry Santillo as a qualified, trustworthy and experienced buyer to 9 David Marshall. Plaintiff additionally fails to plead anything with respect how this generalized statement 10 about FP Transitions was made without reasonable grounds for believing it to be true. 11 In opposition to Defendant’s demurrer, Plaintiff cites once from its complaint in conclusory 12 fashion and then provides paragraphs of allegations never plead in any of the three complaints Plaintiff 13 has filed to date. The Court previously sustained Defendant’s demurrer to this cause of action on the 14 grounds that it failed to state facts sufficient to constitute a cause of action, and this amended pleading 15 remains substantially the same as before. 16 Since IFG and Assignors have failed to adequately plead negligent misrepresentation and the 17 Complaint does not state facts sufficient to constitute a cause of action and is uncertain, itshould be 18 dismissed. 19 B. IFG and Assignors Have Failed to Adequately Plead Negligent Misrepresentation Three Times and Additional Amendment Would Be Futile. 20 21 [I]f a plaintiff pleads a claim that fails to state a cause of action, a demurrer is properly 22 sustained[.]” (Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212, 1225.) Leave to amend 23 should not be granted where ... amendment would be futile. (Redfearn, 20 Cal.App.5th at 997.) IFG 24 and Assignors have filed three complaints in this action, with this Court sustaining Defendant’s demurrer 25 as to Plaintiff’s cause of action for negligent misrepresentation in Plaintiff’s First Amended Complaint 26 on the grounds it failed to state facts sufficient to constitute a cause of action and was uncertain. Plaintiff 27 still fails to adequately plead a cause of action for negligent misrepresentation against FP Transitions 28 and a fourth bite at the proverbial apple by Plaintiff would be futile. As such, Defendant’s demurrer -3- DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER 1 should be sustained without leave to amend. 2 III. CONCLUSION. 3 Therefore, for each of the reasons discussed in the Demurrer and this Reply, Defendant requests 4 that this Court sustain Defendant FP Transitions, LLC’s demurrer to Plaintiff’s cause of action for 5 negligent misrepresentation in Plaintiff’s Second Amended Complaint without leave to amend. 6 7 DATED: March 4, 2022 MURPHY, PEARSON, BRADLEY & FEENEY 8 9 By 10 Bryan L.P. Saalfeld Thomas F. Mazzucco 11 Attorneys for Defendant FP TRANSITIONS, LLC 12 13 AGM.4282899.docx 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER 1 CERTIFICATE OF SERVICE 2 I, Linda J. Currid, declare: 3 I am a citizen of the United States, am over the age of eighteen years, and am not a party to or 4 interested in the within entitled cause. My business address is 580 California Street, Suite 1100, San 5 Francisco, California 94104. 6 On March 4, 2022, I served the following document(s) on the parties in the within action: 7 DEFENDANT FP TRANSITIONS REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS' SECOND AMENDED COMPLAINT 8 9 VIA E-MAIL: I attached the above-described document(s) to an e-mail message, and X invoked the send command to transmit the e-mail message to the person(s) at the e-mail 10 address(es) listed below. My email address is lcurrid@mpbf.com. 11 Rick Smith Attorney For Plaintiff 12 Markun Zusman Freniere & Compton LLP INDEPENDENT FINANCIAL GROUP, 465 California Street, Suite 401 LLC, ET AL. 13 San Francisco, CA 94104 E-mail: rsmith@mzclaw.com 14 Phone: (415) 438-4388 Fax: (415) 434-4505 15 16 I declare under penalty of perjury under the laws of the State of California that the foregoing is 17 a true and correct statement and that this Certificate was executed on March 4, 2022. 18 By 19 Linda J. Currid 20 21 22 23 24 25 26 27 28 -5- DEFENDANT'S REPLY BRIEF IN SUPPORT OF DEMURRER