Preview
1 Edward S. Zusman (SBN 154366)
Rick Smith (SBN 298556)
2 MARKUN ZUSMAN & COMPTON LLP
465 California Street, Suite 401
3 San Francisco, California 94104
Telephone: (415) 438-4515
4 Facsimile: (415) 434-4505
5 Attorneys for Plaintiff
6
SUPERIOR COURT OF CALIFORNIA
7
8 IN AND FOR THE COUNTY OF MONTEREY
9
INDEPENDENT FINANCIAL GROUP, Case No.: 21CV001264
10 LLC, on its own behalf and as assignee of
Adolfo Artalejo; Rod Belton and Nancy PLAINTIFF’S MEMORANDUM OF
11 Belton; James Cornelius and June Cornelius; POINTS AND AUTHORITIES IN
John Favero and Philayna Favero; Ray OPPOSITION TO DEFENDANT’S
12 Moncada and Vinnie Moncada; Sheryl Peck; MOTION TO STRIKE
Juanita Stoddard; Ron Taylor and Hazel
13 Taylor; Jane Beery; Joy Chandler; John Day;
Sim Granoff and Virginia Lott; Gretchen
14 Jackson; William Miller and Sharon Miller; Date: April 8, 2022
Darryl Prudden; Carolyn Rice; John Romero Time: 8:30 a.m.
15 and Sandy Romero; Bennie Hill and Lynda Dept.: 14
Hill; Ellen Koskinen; George Lynch and Via Zoom—TBA
16 Helen Lynch; Mathew Panziera and Jamie
Panziera; Tom Sgheiza and Mary Sgheiza; Complaint Filed: April 15, 2021
17 and Gene Kondo Trial Date: None Set
18 Plaintiff,
19 v.
20 FP TRANSITIONS, LLC and DOES 1-50,
INCLUSIVE,
21
Defendants.
22
23
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25
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28
1
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 I. INTRODUCTION1
2 Defendant argues that the addition of additional assigned claims in Plaintiff’s Second
3 Amended Complaint is improper and should be stricken. Defendant is incorrect. Nothing in the
4 Court’s order on Defendant’s demurrer prohibited Plaintiff from adding assigned claims that
5 arose after the filing of the initial complaint, but which are premised on the same facts and law.
6 And, in any event, Defendant’s Motion to Strike is futile for the reasons explained below.
7 II. FACTUAL BACKGROUND
8 On or about March 2016, Marshall, then a Registered Representative of IFG, entered into
9 a contract with FP Transitions for the purposes of selling his financial services business, Marshall
10 Wealth Management Group (“MWMG”). Marshall intended to retire, and sought to sell his
11 business, clients of which included the Assignors, and engaged Defendant FP Transitions to select
12 qualified, trustworthy, and capable buyers. FP Transitions held themselves out as experts in the
13 field of financial service business sales coordination.
14 FP Transitions provided its assurances to Marshall and IFG that, based upon its expertise
15 in financial business sales transactions, it would source a qualified, trustworthy buyer. The
16 securities business in which Marshall and IFG operate is highly regulated and the sale of a
17 registered representative’s book of business can have implications for the broker-dealer that must
18 be considered. Finding suitable buyers for such business operations is a key part of FP
19 Transitions’ business. Accordingly, FP Transitions is well aware of the importance of finding a
20 qualified, suitable buyer. FP Transitions identified and endorsed Perry Santillo as a qualified,
21 trustworthy, and experienced buyer. Based on FP Transitions’s representations to IFG and
22 Marshall that Perry Santillo was the best, most reputable, and most thoroughly vetted candidate,
23 Marshall executed a contract with Santillo, drafted by FP Transitions, for the sale of MWMG.
24 Despite FP Transitions’s repeated assurances and endorsements of Santillo as a
25 trustworthy, experienced financial services professional, he turned out to be the ringleader of a
26
1
Defendant filed a Notice of Non-Opposition on March 4, 2022 arguing that Plaintiff had not
27 opposed the Motion to Strike because, based on the previously set hearing date of March 11,
20022, Plaintiff’s Opposition to the motion was due on February 28, 2022. However, on
28 February 9, 2022, the Court on its own motion reset the hearing date to April 8, 2022.
Accordingly, this Opposition to Defendant’s motion is timely.
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 large scale Ponzi-scheme, which, to date, has defrauded investors nationwide of over $100
2 million.
3 Assignors, clients of Marshall and IFG who were defrauded by Santillo, brought claims
4 against IFG through FINRA to recover their misappropriated monies pilfered by Santillo.
5 Assignors contended, among other things, that IFG was negligent in failing to properly vet
6 Santillo prior to the sale of MWMG to Santillo by Marshall.
7 Based on the foregoing, Assignors have alleged claims against IFG. Those claims against
8 IFG have been settled in exchange for valuable consideration.
9 IFG is informed and believes that FP Transitions, intentionally omitted material facts
10 regarding Santillo in its discussions with Marshall and IFG of the sale of MWMG to Santillo,
11 negligently misrepresented Santillo’s qualifications to Marshall and IFG and/or otherwise
12 improperly influenced Marshall to sell MWMG to Santillo and thereby caused damages to
13 Assignors and IFG.
14 III. ARGUMENT
15 A. Legal Standard on Motion to Strike
16 Code of Civil Procedure section 436 empowers the trial court to strike out any irrelevant,
17 false, or improper matter inserted in a pleading or all or any part of a pleading not drawn of filed
18 in conformity of the laws of the state, a court rule, or order of the court. Code Civ. Proc. § 436(a)-
19 (b). The courts have “inherent authority to strike scandalous and abusive statements in
20 pleadings.” Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1070.) Further, an allegation that is not
21 essential to the statement of a claim or defense is an immaterial allegation that is subject to be
22 stricken as an irrelevant matter. Code Civ. Proc. §§ 431.10(b)(1), (c); 436 (a). That said, motions
23 to strike must be utilized very cautiously, as they are not procedural “line item vetoes” for the
24 civil defendant. PHII, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683. Courts
25 considering such motions must presume the allegations contained therein are true and must
26 consider those allegations in context. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253,
27 1255.
28
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 B. Plaintiff’s Amendment Was Proper and Defendant’s Motion to Strike Is Futile
2 Clearly there is nothing irrelevant, false of improper in the allegations Defendant cite in
3 their motion. Rather, Defendant argues that the addition of additional assigned claims in
4 Plaintiff’s Second Amended Complaint, not the allegations themselves, is improper and should be
5 stricken. The Court granted Plaintiff leave to amend the First Amended Complaint. Plaintiff
6 acted accordingly. Plaintiff and Defendant remain the sole parties in the Second Amended
7 Complaint. Plaintiff has not added any parties and has not added any new theories of liability in
8 the Second Amended Complaint. Nothing in the Court’s order on Defendant’s demurrer
9 prohibited Plaintiff from adding assigned claims that are premised on the same facts and law. The
10 Notice of Order that Defendant itself drafted demonstrates this. See Exhibit A.
11 Defendant relies on People v. Clausen (1967) 248 Cal.App.2d 770, 785-786 in arguing
12 that the inclusion of the claims Mr. Kondo assigned to Plaintiff is improper. However, Clausen
13 involved a situation where the party opposing the motion to strike had attempted to bring in new
14 parties on the other side, new cross-defendants. Here, Plaintiff has not brought in new parties and
15 certainly has not named any new defendants. Plaintiff has simply included additional assigned
16 claims based on the same facts and law, which were not assigned until after the initial complaint
17 was filed.
18 Further, it is somewhat unclear what Defendant’s motion to strike would accomplish even
19 if it were granted. “Where the defect raised by a motion to strike or by demurrer is reasonably
20 capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to
21 cure the defect in question.’ [Citations.] A pleading may be stricken only upon terms the court
22 deems proper [citation], that is, terms that are just. [Citations.]” CLD Construction, Inc. v. City of
23 San Ramon (2004) 120 Cal.App.4th 1141, 1146–1147, 16 Cal.Rptr.3d 555.
24 The Kondo assigned claims quite clearly concern common questions of law and facts, in
25 fact those claims concern identical questions of law and fact. If Defendant’s motion to strike
26 were granted, Plaintiff should be given leave to “amend” to include the Kondo assigned claims.
27 In the alternative, if Plaintiff were to file the claims assigned by Mr. Kondo in a new proceeding,
28 Plaintiff would have a clear basis for a motion to consolidate that new proceeding with the instant
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
1 action. Judicial economy would quite obviously argue in favor of consolidation of the claims
2 assigned by Mr. Kondo with this proceeding given that the question of law and fact are in fact
3 identical. Given these circumstances, Defendant’s motion to strike is futile and should be denied.
4 IV. CONCLUSION
5 Based on the facts and law cited above, Defendant’s motion to strike should be denied.
6
7 Respectfully submitted,
8 MARKUN ZUSMAN & COMPTON LLP
9
10
Dated: March 25, 2022 By: _______________________________
11
12 Edward S. Zusman (SBN 154366)
Rick Smith (SBN 298556)
13 MARKUN ZUSMAN & COMPTON LLP
465 California Street, Suite 401
14 San Francisco, California 94104
15 Attorneys for Plaintiff
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17
18
19
20
21
22
23
24
25
26
27
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE
Exhibit A
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
12 on its own behalf and as assignee of Adolfo
Artalejo; Rod Belton and Nancy Belton; James NOTICE OF ORDER REGARDING
13 Cornelius and June Cornelius; John Favero and DEFENDANT FP TRANSITIONS, LLC’S
Philayna Favero; Ray Moncada and Vinnie DEMURRER TO PLAINTIFFS’ FIRST
14 Moncada; Sheryl Peck; Juanita Stoddard; Ron AMENDED COMPLAINT
Taylor and Hazel Taylor; Jane Beery; Joy
15 Chandler; John Day; Sim Granoff and Virginia
Lott; Gretchen Jackson; William Miller and
16 Sharon Miller; Darryl Prudden; Carolyn Rice;
John Romero and Sandy Romero; Bennie Hill
17 and Lynda Hill; Ellen Koskinen; George Lynch
and Helen Lynch; Mathew Panziera and Jamie
18 Panziera; and Tom Sgheiza and Mary Sgheiza,,
19 Plaintiff,
20 v.
21 FP TRANSITIONS, LLC and DOES 1-50,
INCLUSIVE,
22
Defendants.
23
24
25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
26 PLEASE TAKE NOTICE that the hearing on the Demurrer of Defendant FP TRANSITIONS,
27 LLC came on for hearing on October 19, 2021, at 9:00 a.m., in Dept. 13 of the Monterey Courthouse
28 located at 1200 Aguajito Road, Monterey, CA 93940, the Honorable Judge Robert O’Farrell presiding
-1-
NOTICE OF ORDER REGARDING DEFENDANT FP TRANSITIONS, LLC’S DEMURRER TO PLAINTIFFS’
FIRST AMENDED COMPLAINT
1 via Zoom.
2 FP Transitions had demurred to Plaintiffs’ First Amended Complaint on on grounds that
3 Plaintiffs IFG and Assignors1 to IFG (collectively “Plaintiffs”) First Amended Complaint failed to state
4 facts sufficient to support their claims and is barred by the applicable statute of limitations. Specifically,
5 FP Transitions demurred on the grounds that Plaintiffs’ claims were barred by the applicable statutes of
6 limitations and fail to state facts sufficient to support their claims for (1) Equitable Indemnity, (2)
7 Equitable Contribution, (3) Breach of Contract Third Party Beneficiary, (4) Negligent Misrepresentation,
8 (5) Professional Negligence, and (6) Negligence pursuant to Code of Civil Procedure sections 430.10(e)
9 and 430.10(f).
10 At the hearing, after argument by the parties, the Court orally issued its ruling as the Order of the
11 Court. The Court SUSTAINED with leave to amend FP Transitions Demurrer with respect to the cause
12 of action for Negligent Misrepresentation on the grounds of the pleading for that cause of action being
13 uncertain under to Procedure sections 430.10(e) and 430.10(f). The Court OVERRULED Defendant FP
14 Transitions, LLC’s Demurrer to Plaintiffs’ First Amended Complaint on all other grounds asserted in
15 the Demurrer. Plaintiffs have thirty (30) days from the Court’s oral order to file a Second Amended
16 Complaint.
17 DATED: November 3, 2021
18 MURPHY, PEARSON, BRADLEY & FEENEY
19
20 By
Bryan L. Saalfeld
21 Thomas F. Mazzucco
Attorneys for Defendant
22 FP TRANSITIONS, LLC
23
TFM.4063017.docx
24
25
1
26 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,
28 George Lynch and Helen Lynch, Matthew Panziera and Jamie Panziera, and Tom Sgheiza and Mary
Sgheiza .
-2-
NOTICE OF ORDER REGARDING DEFENDANT FP TRANSITIONS, LLC’S DEMURRER TO PLAINTIFFS’
FIRST AMENDED COMPLAINT
Preview
1 Edward S. Zusman (SBN 154366) Rick Smith (SBN 298556) 2 MARKUN ZUSMAN & COMPTON LLP 465 California Street, Suite 401 3 San Francisco, California 94104 Telephone: (415) 438-4515 4 Facsimile: (415) 434-4505 5 Attorneys for Plaintiff 6 SUPERIOR COURT OF CALIFORNIA 7 8 IN AND FOR THE COUNTY OF MONTEREY 9 INDEPENDENT FINANCIAL GROUP, Case No.: 21CV001264 10 LLC, on its own behalf and as assignee of Adolfo Artalejo; Rod Belton and Nancy PLAINTIFF’S MEMORANDUM OF 11 Belton; James Cornelius and June Cornelius; POINTS AND AUTHORITIES IN John Favero and Philayna Favero; Ray OPPOSITION TO DEFENDANT’S 12 Moncada and Vinnie Moncada; Sheryl Peck; MOTION TO STRIKE Juanita Stoddard; Ron Taylor and Hazel 13 Taylor; Jane Beery; Joy Chandler; John Day; Sim Granoff and Virginia Lott; Gretchen 14 Jackson; William Miller and Sharon Miller; Date: April 8, 2022 Darryl Prudden; Carolyn Rice; John Romero Time: 8:30 a.m. 15 and Sandy Romero; Bennie Hill and Lynda Dept.: 14 Hill; Ellen Koskinen; George Lynch and Via Zoom—TBA 16 Helen Lynch; Mathew Panziera and Jamie Panziera; Tom Sgheiza and Mary Sgheiza; Complaint Filed: April 15, 2021 17 and Gene Kondo Trial Date: None Set 18 Plaintiff, 19 v. 20 FP TRANSITIONS, LLC and DOES 1-50, INCLUSIVE, 21 Defendants. 22 23 24 25 26 27 28 1 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 I. INTRODUCTION1 2 Defendant argues that the addition of additional assigned claims in Plaintiff’s Second 3 Amended Complaint is improper and should be stricken. Defendant is incorrect. Nothing in the 4 Court’s order on Defendant’s demurrer prohibited Plaintiff from adding assigned claims that 5 arose after the filing of the initial complaint, but which are premised on the same facts and law. 6 And, in any event, Defendant’s Motion to Strike is futile for the reasons explained below. 7 II. FACTUAL BACKGROUND 8 On or about March 2016, Marshall, then a Registered Representative of IFG, entered into 9 a contract with FP Transitions for the purposes of selling his financial services business, Marshall 10 Wealth Management Group (“MWMG”). Marshall intended to retire, and sought to sell his 11 business, clients of which included the Assignors, and engaged Defendant FP Transitions to select 12 qualified, trustworthy, and capable buyers. FP Transitions held themselves out as experts in the 13 field of financial service business sales coordination. 14 FP Transitions provided its assurances to Marshall and IFG that, based upon its expertise 15 in financial business sales transactions, it would source a qualified, trustworthy buyer. The 16 securities business in which Marshall and IFG operate is highly regulated and the sale of a 17 registered representative’s book of business can have implications for the broker-dealer that must 18 be considered. Finding suitable buyers for such business operations is a key part of FP 19 Transitions’ business. Accordingly, FP Transitions is well aware of the importance of finding a 20 qualified, suitable buyer. FP Transitions identified and endorsed Perry Santillo as a qualified, 21 trustworthy, and experienced buyer. Based on FP Transitions’s representations to IFG and 22 Marshall that Perry Santillo was the best, most reputable, and most thoroughly vetted candidate, 23 Marshall executed a contract with Santillo, drafted by FP Transitions, for the sale of MWMG. 24 Despite FP Transitions’s repeated assurances and endorsements of Santillo as a 25 trustworthy, experienced financial services professional, he turned out to be the ringleader of a 26 1 Defendant filed a Notice of Non-Opposition on March 4, 2022 arguing that Plaintiff had not 27 opposed the Motion to Strike because, based on the previously set hearing date of March 11, 20022, Plaintiff’s Opposition to the motion was due on February 28, 2022. However, on 28 February 9, 2022, the Court on its own motion reset the hearing date to April 8, 2022. Accordingly, this Opposition to Defendant’s motion is timely. PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 large scale Ponzi-scheme, which, to date, has defrauded investors nationwide of over $100 2 million. 3 Assignors, clients of Marshall and IFG who were defrauded by Santillo, brought claims 4 against IFG through FINRA to recover their misappropriated monies pilfered by Santillo. 5 Assignors contended, among other things, that IFG was negligent in failing to properly vet 6 Santillo prior to the sale of MWMG to Santillo by Marshall. 7 Based on the foregoing, Assignors have alleged claims against IFG. Those claims against 8 IFG have been settled in exchange for valuable consideration. 9 IFG is informed and believes that FP Transitions, intentionally omitted material facts 10 regarding Santillo in its discussions with Marshall and IFG of the sale of MWMG to Santillo, 11 negligently misrepresented Santillo’s qualifications to Marshall and IFG and/or otherwise 12 improperly influenced Marshall to sell MWMG to Santillo and thereby caused damages to 13 Assignors and IFG. 14 III. ARGUMENT 15 A. Legal Standard on Motion to Strike 16 Code of Civil Procedure section 436 empowers the trial court to strike out any irrelevant, 17 false, or improper matter inserted in a pleading or all or any part of a pleading not drawn of filed 18 in conformity of the laws of the state, a court rule, or order of the court. Code Civ. Proc. § 436(a)- 19 (b). The courts have “inherent authority to strike scandalous and abusive statements in 20 pleadings.” Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1070.) Further, an allegation that is not 21 essential to the statement of a claim or defense is an immaterial allegation that is subject to be 22 stricken as an irrelevant matter. Code Civ. Proc. §§ 431.10(b)(1), (c); 436 (a). That said, motions 23 to strike must be utilized very cautiously, as they are not procedural “line item vetoes” for the 24 civil defendant. PHII, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683. Courts 25 considering such motions must presume the allegations contained therein are true and must 26 consider those allegations in context. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 27 1255. 28 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 B. Plaintiff’s Amendment Was Proper and Defendant’s Motion to Strike Is Futile 2 Clearly there is nothing irrelevant, false of improper in the allegations Defendant cite in 3 their motion. Rather, Defendant argues that the addition of additional assigned claims in 4 Plaintiff’s Second Amended Complaint, not the allegations themselves, is improper and should be 5 stricken. The Court granted Plaintiff leave to amend the First Amended Complaint. Plaintiff 6 acted accordingly. Plaintiff and Defendant remain the sole parties in the Second Amended 7 Complaint. Plaintiff has not added any parties and has not added any new theories of liability in 8 the Second Amended Complaint. Nothing in the Court’s order on Defendant’s demurrer 9 prohibited Plaintiff from adding assigned claims that are premised on the same facts and law. The 10 Notice of Order that Defendant itself drafted demonstrates this. See Exhibit A. 11 Defendant relies on People v. Clausen (1967) 248 Cal.App.2d 770, 785-786 in arguing 12 that the inclusion of the claims Mr. Kondo assigned to Plaintiff is improper. However, Clausen 13 involved a situation where the party opposing the motion to strike had attempted to bring in new 14 parties on the other side, new cross-defendants. Here, Plaintiff has not brought in new parties and 15 certainly has not named any new defendants. Plaintiff has simply included additional assigned 16 claims based on the same facts and law, which were not assigned until after the initial complaint 17 was filed. 18 Further, it is somewhat unclear what Defendant’s motion to strike would accomplish even 19 if it were granted. “Where the defect raised by a motion to strike or by demurrer is reasonably 20 capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to 21 cure the defect in question.’ [Citations.] A pleading may be stricken only upon terms the court 22 deems proper [citation], that is, terms that are just. [Citations.]” CLD Construction, Inc. v. City of 23 San Ramon (2004) 120 Cal.App.4th 1141, 1146–1147, 16 Cal.Rptr.3d 555. 24 The Kondo assigned claims quite clearly concern common questions of law and facts, in 25 fact those claims concern identical questions of law and fact. If Defendant’s motion to strike 26 were granted, Plaintiff should be given leave to “amend” to include the Kondo assigned claims. 27 In the alternative, if Plaintiff were to file the claims assigned by Mr. Kondo in a new proceeding, 28 Plaintiff would have a clear basis for a motion to consolidate that new proceeding with the instant PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE 1 action. Judicial economy would quite obviously argue in favor of consolidation of the claims 2 assigned by Mr. Kondo with this proceeding given that the question of law and fact are in fact 3 identical. Given these circumstances, Defendant’s motion to strike is futile and should be denied. 4 IV. CONCLUSION 5 Based on the facts and law cited above, Defendant’s motion to strike should be denied. 6 7 Respectfully submitted, 8 MARKUN ZUSMAN & COMPTON LLP 9 10 Dated: March 25, 2022 By: _______________________________ 11 12 Edward S. Zusman (SBN 154366) Rick Smith (SBN 298556) 13 MARKUN ZUSMAN & COMPTON LLP 465 California Street, Suite 401 14 San Francisco, California 94104 15 Attorneys for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE Exhibit A 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 12 on its own behalf and as assignee of Adolfo Artalejo; Rod Belton and Nancy Belton; James NOTICE OF ORDER REGARDING 13 Cornelius and June Cornelius; John Favero and DEFENDANT FP TRANSITIONS, LLC’S Philayna Favero; Ray Moncada and Vinnie DEMURRER TO PLAINTIFFS’ FIRST 14 Moncada; Sheryl Peck; Juanita Stoddard; Ron AMENDED COMPLAINT Taylor and Hazel Taylor; Jane Beery; Joy 15 Chandler; John Day; Sim Granoff and Virginia Lott; Gretchen Jackson; William Miller and 16 Sharon Miller; Darryl Prudden; Carolyn Rice; John Romero and Sandy Romero; Bennie Hill 17 and Lynda Hill; Ellen Koskinen; George Lynch and Helen Lynch; Mathew Panziera and Jamie 18 Panziera; and Tom Sgheiza and Mary Sgheiza,, 19 Plaintiff, 20 v. 21 FP TRANSITIONS, LLC and DOES 1-50, INCLUSIVE, 22 Defendants. 23 24 25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 26 PLEASE TAKE NOTICE that the hearing on the Demurrer of Defendant FP TRANSITIONS, 27 LLC came on for hearing on October 19, 2021, at 9:00 a.m., in Dept. 13 of the Monterey Courthouse 28 located at 1200 Aguajito Road, Monterey, CA 93940, the Honorable Judge Robert O’Farrell presiding -1- NOTICE OF ORDER REGARDING DEFENDANT FP TRANSITIONS, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 via Zoom. 2 FP Transitions had demurred to Plaintiffs’ First Amended Complaint on on grounds that 3 Plaintiffs IFG and Assignors1 to IFG (collectively “Plaintiffs”) First Amended Complaint failed to state 4 facts sufficient to support their claims and is barred by the applicable statute of limitations. Specifically, 5 FP Transitions demurred on the grounds that Plaintiffs’ claims were barred by the applicable statutes of 6 limitations and fail to state facts sufficient to support their claims for (1) Equitable Indemnity, (2) 7 Equitable Contribution, (3) Breach of Contract Third Party Beneficiary, (4) Negligent Misrepresentation, 8 (5) Professional Negligence, and (6) Negligence pursuant to Code of Civil Procedure sections 430.10(e) 9 and 430.10(f). 10 At the hearing, after argument by the parties, the Court orally issued its ruling as the Order of the 11 Court. The Court SUSTAINED with leave to amend FP Transitions Demurrer with respect to the cause 12 of action for Negligent Misrepresentation on the grounds of the pleading for that cause of action being 13 uncertain under to Procedure sections 430.10(e) and 430.10(f). The Court OVERRULED Defendant FP 14 Transitions, LLC’s Demurrer to Plaintiffs’ First Amended Complaint on all other grounds asserted in 15 the Demurrer. Plaintiffs have thirty (30) days from the Court’s oral order to file a Second Amended 16 Complaint. 17 DATED: November 3, 2021 18 MURPHY, PEARSON, BRADLEY & FEENEY 19 20 By Bryan L. Saalfeld 21 Thomas F. Mazzucco Attorneys for Defendant 22 FP TRANSITIONS, LLC 23 TFM.4063017.docx 24 25 1 26 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, 28 George Lynch and Helen Lynch, Matthew Panziera and Jamie Panziera, and Tom Sgheiza and Mary Sgheiza . -2- NOTICE OF ORDER REGARDING DEFENDANT FP TRANSITIONS, LLC’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT