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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
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF MONTEREY
11
12 INDEPENDENT FINANCIAL GROUP, LLC, Case No.: 21CV001264
on its own behalf and as assignee of Adolfo
13 Artalejo; Rod Belton and Nancy Belton; James DEFENDANT FP TRANSITIONS, LLC'S
Cornelius and June Cornelius; John Favero and REPLY IN SUPPORT OF MOTION TO
14 Philayna Favero; Ray Moncada and Vinnie STRIKE
Moncada; Sheryl Peck; Juanita Stoddard; Ron
15 Taylor and Hazel Taylor; Jane Beery; Joy
Chandler; John Day; Sim Granoff and Virginia
16 Lott; Gretchen Jackson; William Miller and
Sharon Miller; Darryl Prudden; Carolyn Rice; Date: April 8, 2022
17 John Romero and Sandy Romero; Bennie Hill Time: 8:30 a.m.
and Lynda Hill; Ellen Koskinen; George Lynch Dept.: 14
18 and Helen Lynch; Mathew Panziera and Jamie Judge: Hon. Carrie M. Panetta
Panziera; and Tom Sgheiza and Mary Sgheiza,, Via Zoom–TBA
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Plaintiff, Complaint Filed: April 15, 2021
20 Trial Date: None Set
v.
21
FP TRANSITIONS, LLC and DOES 1-50,
22 INCLUSIVE,
23 Defendants.
24
25 I. INTRODUCTION.
26 Plaintiffs’ opposition to the Defendant’s Motion to Strike fails to explain how the addition of Mr.
27 Kondo as an assignor seven months after the filing of the Complaint and First Amended Complaint is
28 proper. This Court should strike those portions of Plaintiffs INDEPENDENT FINANCIAL GROUP,
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DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE
1 LLC (“IFG”) and Assignors1 to IFG (collectively “Plaintiffs”) Second Amended Complaint where
2 Plaintiffs have added without leave of this Court Mr. Gene Kondo as a Plaintiff. Specifically, at a hearing
3 on October 19, 2021, this Court sustained Defendant’s demurrer as to the Plaintiffs’ cause of action for
4 negligent misrepresentation with leave to amend in Plaintiffs First Amended Complaint. The Court’s
5 order limited Plaintiffs’ amendment to a further attempt to replead its cause of action for negligent
6 misrepresentation.
7 For these reasons and those contained in FP Transitions’ Motion, the motion to strike is proper
8 and should be granted.
9 II. PLAINTIFF’S ADDITION OF MR. KONDO VIOLATED THE COURT’S ORDER
GRANTING LEAVE TO AMEND.
10
11 Again, as stated in FP Transitions Motion, on November 18, 2021, Plaintiffs filed their Second
12 Amended Complaint. The Second Amended Complaint added paragraph 42 as to the negligent
13 misrepresentation cause of action, while also adding Mr. Gene Kondo as a Plaintiff in paragraph 27 and
14 the caption. However, the Court had only granted Plaintiffs leave to amend with respect to Plaintiffs’
15 negligent misrepresentation cause of action. At no point did the Court grant Plaintiffs leave to amend to
16 add additional Plaintiffs and Assignors without properly seeking leave of this Court.
17 Where a court grants leave to amend after sustaining a demurrer, the scope of permissible
18 amendment is limited to the cause(s) of action to which the demurrer has been sustained: “[S]uch
19 granting of leave to amend must be construed as permission to the pleader to amend the cause of action
20 which he pleaded in the pleading to which the demurrer has been sustained.” (People v. Clausen (1967)
21 248 Cal.App.2d 770, 785-786; see Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.)
22 Therefore, this Court should strike all references to Mr. Gene Kondo including at (1) the caption
23 line 17; (2) paragraph 27, page 7 line 27 though page 8 line 3; and (3) Paragraph 28, page 8, line 9 as a
24 pleading not drawn in conformity with the laws of the state.
25
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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 .
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DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE
1 III. THE IMPROPER ADDITION OF MR. KONDO PREJUDICES DEFENDANT.
2 Not only is the addition of Mr. Kondo inappropriate as Plaintiffs did not seek leave of this Court
3 to amend their pleadings, but the alleged additional damages figure materially increases the alleged
4 damages against Defendant. Plaintiffs cannot just add additional Plaintiffs and Assignors as they see fit
5 as this would leave FP Transitions to defend itself against ever changing Assignors, allegations, and
6 alleged damages. Defendant has already raised in its Demurrer to the First Amended Complaint, that
7 there are serious arguments that these claims are time barred, and the continued addition of Assignor’s
8 seven months after initiating this action is prejudicial to Defendant. Moreover, in IFG’s opposition to
9 this Motion, Plaintiff provides no justification for the delay in adding Mr. Kondo including any mistake
10 or omission.
11 IV. CONCLUSION.
12 Therefore, for each of the reasons discussed in the Motion and this Reply, Defendant requests
13 that this Court grant Defendant’s Motion to Strike and strike all references to Mr. Gene Kondo including
14 at (1) the caption line 17; (2) paragraph 27, page 7 line 27 though page 8 line 3; and (3) Paragraph 28,
15 page 8, line 9 as a pleading not drawn in conformity with the laws of the state.
16
17 DATED: April 1, 2022
MURPHY, PEARSON, BRADLEY & FEENEY
18
19
By
20 Bryan L.P. Saalfeld
Thomas F. Mazzucco
21 Attorneys for Defendant
FP TRANSITIONS, LLC
22
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TFM.4331838.docx
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DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE
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 April 1, 2022, I served the following document(s) on the parties in the within action:
7 DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE
8
VIA E-MAIL: I attached the above-described document(s) to an e-mail message, and
9 X invoked the send command to transmit the e-mail message to the person(s) at the e-mail
address(es) listed below. My email address is lcurrid@mpbf.com.
10
11 Rick Smith Attorney For Plaintiff
Markun Zusman Freniere & Compton LLP INDEPENDENT FINANCIAL GROUP,
12 465 California Street, Suite 401 LLC, ET AL.
San Francisco, CA 94104
13 E-mail: rsmith@mzclaw.com
Phone: (415) 438-4388
14 Fax: (415) 434-4505
15
I declare under penalty of perjury under the laws of the State of California that the foregoing is
16
a true and correct statement and that this Certificate was executed on April 1, 2022.
17
18 By
Linda J. Currid
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DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE
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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 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF MONTEREY 11 12 INDEPENDENT FINANCIAL GROUP, LLC, Case No.: 21CV001264 on its own behalf and as assignee of Adolfo 13 Artalejo; Rod Belton and Nancy Belton; James DEFENDANT FP TRANSITIONS, LLC'S Cornelius and June Cornelius; John Favero and REPLY IN SUPPORT OF MOTION TO 14 Philayna Favero; Ray Moncada and Vinnie STRIKE Moncada; Sheryl Peck; Juanita Stoddard; Ron 15 Taylor and Hazel Taylor; Jane Beery; Joy Chandler; John Day; Sim Granoff and Virginia 16 Lott; Gretchen Jackson; William Miller and Sharon Miller; Darryl Prudden; Carolyn Rice; Date: April 8, 2022 17 John Romero and Sandy Romero; Bennie Hill Time: 8:30 a.m. and Lynda Hill; Ellen Koskinen; George Lynch Dept.: 14 18 and Helen Lynch; Mathew Panziera and Jamie Judge: Hon. Carrie M. Panetta Panziera; and Tom Sgheiza and Mary Sgheiza,, Via Zoom–TBA 19 Plaintiff, Complaint Filed: April 15, 2021 20 Trial Date: None Set v. 21 FP TRANSITIONS, LLC and DOES 1-50, 22 INCLUSIVE, 23 Defendants. 24 25 I. INTRODUCTION. 26 Plaintiffs’ opposition to the Defendant’s Motion to Strike fails to explain how the addition of Mr. 27 Kondo as an assignor seven months after the filing of the Complaint and First Amended Complaint is 28 proper. This Court should strike those portions of Plaintiffs INDEPENDENT FINANCIAL GROUP, -1- DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE 1 LLC (“IFG”) and Assignors1 to IFG (collectively “Plaintiffs”) Second Amended Complaint where 2 Plaintiffs have added without leave of this Court Mr. Gene Kondo as a Plaintiff. Specifically, at a hearing 3 on October 19, 2021, this Court sustained Defendant’s demurrer as to the Plaintiffs’ cause of action for 4 negligent misrepresentation with leave to amend in Plaintiffs First Amended Complaint. The Court’s 5 order limited Plaintiffs’ amendment to a further attempt to replead its cause of action for negligent 6 misrepresentation. 7 For these reasons and those contained in FP Transitions’ Motion, the motion to strike is proper 8 and should be granted. 9 II. PLAINTIFF’S ADDITION OF MR. KONDO VIOLATED THE COURT’S ORDER GRANTING LEAVE TO AMEND. 10 11 Again, as stated in FP Transitions Motion, on November 18, 2021, Plaintiffs filed their Second 12 Amended Complaint. The Second Amended Complaint added paragraph 42 as to the negligent 13 misrepresentation cause of action, while also adding Mr. Gene Kondo as a Plaintiff in paragraph 27 and 14 the caption. However, the Court had only granted Plaintiffs leave to amend with respect to Plaintiffs’ 15 negligent misrepresentation cause of action. At no point did the Court grant Plaintiffs leave to amend to 16 add additional Plaintiffs and Assignors without properly seeking leave of this Court. 17 Where a court grants leave to amend after sustaining a demurrer, the scope of permissible 18 amendment is limited to the cause(s) of action to which the demurrer has been sustained: “[S]uch 19 granting of leave to amend must be construed as permission to the pleader to amend the cause of action 20 which he pleaded in the pleading to which the demurrer has been sustained.” (People v. Clausen (1967) 21 248 Cal.App.2d 770, 785-786; see Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.) 22 Therefore, this Court should strike all references to Mr. Gene Kondo including at (1) the caption 23 line 17; (2) paragraph 27, page 7 line 27 though page 8 line 3; and (3) Paragraph 28, page 8, line 9 as a 24 pleading not drawn in conformity with the laws of the state. 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- DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE 1 III. THE IMPROPER ADDITION OF MR. KONDO PREJUDICES DEFENDANT. 2 Not only is the addition of Mr. Kondo inappropriate as Plaintiffs did not seek leave of this Court 3 to amend their pleadings, but the alleged additional damages figure materially increases the alleged 4 damages against Defendant. Plaintiffs cannot just add additional Plaintiffs and Assignors as they see fit 5 as this would leave FP Transitions to defend itself against ever changing Assignors, allegations, and 6 alleged damages. Defendant has already raised in its Demurrer to the First Amended Complaint, that 7 there are serious arguments that these claims are time barred, and the continued addition of Assignor’s 8 seven months after initiating this action is prejudicial to Defendant. Moreover, in IFG’s opposition to 9 this Motion, Plaintiff provides no justification for the delay in adding Mr. Kondo including any mistake 10 or omission. 11 IV. CONCLUSION. 12 Therefore, for each of the reasons discussed in the Motion and this Reply, Defendant requests 13 that this Court grant Defendant’s Motion to Strike and strike all references to Mr. Gene Kondo including 14 at (1) the caption line 17; (2) paragraph 27, page 7 line 27 though page 8 line 3; and (3) Paragraph 28, 15 page 8, line 9 as a pleading not drawn in conformity with the laws of the state. 16 17 DATED: April 1, 2022 MURPHY, PEARSON, BRADLEY & FEENEY 18 19 By 20 Bryan L.P. Saalfeld Thomas F. Mazzucco 21 Attorneys for Defendant FP TRANSITIONS, LLC 22 23 24 TFM.4331838.docx 25 26 27 28 -3- DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE 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 April 1, 2022, I served the following document(s) on the parties in the within action: 7 DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE 8 VIA E-MAIL: I attached the above-described document(s) to an e-mail message, and 9 X invoked the send command to transmit the e-mail message to the person(s) at the e-mail address(es) listed below. My email address is lcurrid@mpbf.com. 10 11 Rick Smith Attorney For Plaintiff Markun Zusman Freniere & Compton LLP INDEPENDENT FINANCIAL GROUP, 12 465 California Street, Suite 401 LLC, ET AL. San Francisco, CA 94104 13 E-mail: rsmith@mzclaw.com Phone: (415) 438-4388 14 Fax: (415) 434-4505 15 I declare under penalty of perjury under the laws of the State of California that the foregoing is 16 a true and correct statement and that this Certificate was executed on April 1, 2022. 17 18 By Linda J. Currid 19 20 21 22 23 24 25 26 27 28 -4- DEFENDANT FP TRANSITIONS, LLC'S REPLY IN SUPPORT OF MOTION TO STRIKE