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Kenneth Zwick, Esq. Law Offices of Kenneth Zwick P.O. Box 2154 Costa Mesa, CA 92628-1512 Phone: (714) 662-3721 Fax: (714) 662-3167 State Bar # 106520 Attorney for Defendant Emily Neto Benes

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE

JENNIFER L. ALTER Plaintiff, vs. EMILY NETO BENES; CALIFORNIA DEPARTMENT OF MOTOR VEHICLES (As Nominal Defendant), Defendants

Case No.: 30-2009 00317808 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT DEMURRER OF DEFENDANT EMILY NETO BENES TO PLAINTIFF’S FIRST AMENDED COMPLAINT [Filed Concurrently With Notice Of Hearing, Demurrer, and (Proposed) Order] Date: August 6, 2010 Time: 9:00 a.m. Place: Dept. C-27 Judge: Hon. Kazuharu Makino Complaint Filed: Feb. 1, 2010

I. INTRODUCTION The Complaint in this case is a classic example of allegations stated as legal conclusions substituting to allegations of fact. This Demurrer has been brought because the Complaint is littered with legal conclusions and contradictory claims, but is very short on facts. While it is not required that the Plaintiff allege all of the facts in exquisite detail in a Complaint, she cannot simply spout conclusory allegations without stating those facts needed to state a cause of action.

Alter v. Benes et al – Memo of Ps & As on Demurrer by Defendant Benes- 1 Case No.: 30-2009 00317808

Rptr. 434.” A First Amended Complaint was filed on February 1. Defendant. Miles v. deceit. 612. III. On or about February 17. BENES (hereinafter referenced as “BENES”) through fraud. 2010. 617. THE DEMURRER SHOULD BE SUSTAINED BECAUSE THE FIRST CAUSE OF ACTION FOR CONVERSION FAILS TO STATE FACTS SUFFICIENT TO SUPPORT A CAUSE OF ACTION. FACTUAL & LEGAL BACKGROUND On November 5. v. 633. The Complaint in this case tries to substitute conclusory allegations of law rather facts in alleging the First Cause of Action for Conversion. 25 P. It cannot support that cause of action by substituting mere conclusory allegations of law rather than allegations of facts. Alter (“PLAINTIFF”) brought this lawsuit against Defendants Emily Neto Benes (“DEFENDANT BENES”) and “the California Department of Motor Vehicles (as Nominal Defendant). 1190-1191. Benes et al – Memo of Ps & As on Demurrer by Defendant Benes. Dinwiddie (1890) 86 Cal. This is obvious from the first paragraph of the conversion cause of action: “1.: 30-2009 00317808 . A Complaint must allege sufficient facts to support the elements of a cause of action. 255 Cal. This Complaint was served on DEFENDANT BENES on April 20. forgery or some other fraudulent means was able to Alter v. App. Beresford Neighborhood Assn. 2010. PLAINTIFF’S Counsel granted DEFENDANT BENES an extension on the time in which to file a response by telephone and e-mail. II. 638. 271. McDermott (1866) 31 Cal. Orr (1875) 49 Cal. 3d 1180.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Yet that is precisely what has happened here. City of San Mateo (1989) 207 Cal.2 Case No. The Complaint alleges two Causes of Action: Conversion and Fraud. 273. 129. Going v. Plaintiff Jennifer L. Triscony v. 2008. RATHER THAN ALLEGING FACTS PLAINTIFF RELIES ON MERE CONCLUSORY ALLEGATIONS OF LAW. 2009.

She doesn’t want to commit to any one version of the “facts”. alter. THE SECOND CAUSE OF ACTION FOR FRAUD AND INTENTIONAL DECEIT IS SUBJECT TO DEMURRER ON THE GROUND THAT IT FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION BECAUSE IT FAILS TO ALLEGE ALL ELEMENTS OF THE FRAUD COMPLAINED OF IN SPECIFIC TERMS. “she deceived me by some means” or “she forged the document”). It is hard to imagine that PLAINTIFF doesn’t know whether the title to her car was allegedly obtained by fraud or deceit (e.: 30-2009 00317808 . she would know if she gave the title to DEFENDANT BENES. Objection by Demurrer. The party against whom a complaint has been filed may object to the complaint by demurrer on the ground that it does not state facts sufficient to constitute a cause of action where such ground appears on the face of the complaint or from any Alter v.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 change.” Now if someone can determine from that paragraph what PLAINTIFF actually contends happened.3 Case No.g. that DEFENDANT BENES’ converted PLAINTIFF’S property. the demurrer should be sustained as to the First Cause of Action for Conversion. Unless PLAINTIFF is alleging mental lapses.g. she was deceived into giving it over to DEFENDANT BENES) or by an alleged forgery by DEFENDANT BENES. or modify the title to said vehicle mentioned herein so as to allow BENES to fraudulently secure an ownership interest in the vehicle so as to allow or facilitate BENES to take the above-mentioned property from ALTER’S possession and convert the same to BENES’ own use. What is clearly going on here is that PLAINTIFF wants to have her cake and eat it too. not merely legal conclusions (“She converted my property by some fraudulent means.”) Id. they are a linguistic wizard. The Complaint alleges that DEFENDANT BENES and the PLAINTIFF shared a house. i.e. Benes et al – Memo of Ps & As on Demurrer by Defendant Benes. IV. For this reason. Yet she must allege some basic facts in the complaint (e. A. as opposed to the mere allegation of a legal conclusion.

App. (1994) 25 Cal. Natural Y Surgical Specialties. 782-783. prima facie at least. 553.e. and of a failure to plead fraud with specificity. 2d 550. Whenever it constitutes an element of a cause of action or is invoked as conferring a right. Since the above citations make it clear that PLAINTIFF cannot get away with such sloppy.10(a)).4 Case No. Then it alleges “Said acts were based on fraud. 165 P.2d 260 ). 766. 2d 627.10(e)). 75 Cal. Specific and Factual Allegations in Pleading Fraud. Goldrich v. (1969) 70 Cal. Rptr. 251. Inc. § 425. 267-268. the demurrer should be sustained. Proc. Scafidi v. 31 Cal.” This is a textbook example of a legal conclusion substituting for allegations of fact. Western Loan & Bldg. 451 P. it is essential that the facts and circumstances constituting the fraud should be set out clearly. for the charge of fraud ( Hannon v. A complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language (Code Civ. C. Madden (1931) 214 Cal.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 matter of which the court is required to or may take judicial notice (Code Civ. Benes et al – Memo of Ps & As on Demurrer by Defendant Benes. § 430. Leslie Salt Co. PLAINTIFF must be forced to allege what she actually thinks happened. there is any foundation. 4th 772. 5 P. PLAINTIFF HAS FAILED TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION FOR FRAUD AND DECEIT BECAUSE PLAINTIFF Alter v. concisely. and with sufficient particularity to apprise the opposite party of what he or she is called on to answer and to enable the court to determine if. as opposed to pleading in vague legal conclusions where the facts can later be modified depending on what she thinks will benefit her most.2d 4 . B. and/or Intentional Deceit. (1946) 72 Cal. vague. it must be alleged ( Cooper v. 2d 162 ). and bluntly slippery pleading (i. Proc. App. It is fundamental that fraud is not presumed. forgery. a desire to change her pleading once she hears DEFENDANT BENES’ version of the facts). Rptr. In pleading fraud. D. Co. V. The Complaint Fails to Meet these Requirements – The Complaint’s Second Cause of Action contains the allegation that it DEFENDANT BENES did not give PLAINTIFF her pink slip back and had changed title on it.2d 406 . Statement of Facts.: 30-2009 00317808 . 636. on the facts pleaded.

: 30-2009 00317808 . 873 ). Rptr. Deceit Defined. Rptr. Handley (1960) 179 Cal.2d 567 ). A misrepresentation is not material unless either the plaintiff would not have acted as he or she did without it or it relates to a matter of substance and directly affects the purpose for which the plaintiff acted ( Adkins v. A. North Am. C. 2d 742. 823-824. (2)). Mayer (1929) 207 Cal. A claimed fraudulent representation must be pleaded to be relied on in a pleading based on fraud ( Mayer v. 2d 336. VI. 2d 818. 746. 31 Cal. 344. this wasn’t done here. A complaint setting forth fraud must show that the defendant made a false representation of a material fact ( Hill v. Pleading Conclusions of Law Insufficient. (1963) 217 Cal. 3 Cal. Wrather (1958) 158 Cal. Deceit Must Be Pleaded. D. 313 P. A. Misrepresentation of Material Fact Required. Code § 1710(1). 694. the demurrer should be sustained. Wyckoff (1957) 152 Cal. 689.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTEMPTS TO ALLEGE FRAUD IN GENERAL TERMS AND TERMS THAT ARE MERE CONCLUSIONS OF LAW. Inc. A deceit is the suggestion as a fact of something that is not true by one who does not believe it to be true or the assertion as a fact of something that is not true by one who has no reasonable ground for believing it to be true (Civ. As noted above. Every element of a cause of action for fraud must be alleged factually and specifically ( Lesperance v. 910 ). 323 P. Failure to Plead Any Facts re Fraudulent Representation – The PLAINTIFF in this case fails to plead any facts concerning what fraudulent representation led to her pink slip Alter v. App. Aviation.2d 592 . App. Benes et al – Memo of Ps & As on Demurrer by Defendant Benes. Test of Materiality. PLAINTIFF HAS FAILED TO STATE FACTS SUFFICIENT TO ESTABLISH A CAUSE OF ACTION FOR FRAUD AND DECEIT BECAUSE THE COMPLAINT FAILS TO ALLEGE THE CLAIMED FRAUDULENT REPRESENTATION OF A MATERIAL FACT. B.5 Case No. Handley v. Therefore. App. E. It is not sufficient to allege fraud in general terms or in terms that are mere conclusions. 279 P. 685. 783). 2d 684. App.

This does not meet the pleading requirements set forth above for fraud. Therefore.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 changing title to DEFENDANT BENES. forgery and/or Intentional Deceit” without any clarity as to what that allegedly was. Benes et al – Memo of Ps & As on Demurrer by Defendant Benes. the Demurrer should be sustained. VII.6 Case No.: 30-2009 00317808 . Thus. They simply allege the existence of some vague “fraud. LAW OFFICES OF KENNETH ZWICK Date: July 16. CONCLUSION For all of the above reasons. 2010 By: ______________________________ Kenneth Zwick Attorney for Defendant Emily Neto Benes Alter v. the demurrer should be sustained for these reasons as well. the PLAINTIFF should be forced to make some actual allegations of facts with some specificity so as to give the Court and Defendants some idea of what PLAINTIFF thinks happened.

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