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Law Office of __________ and Associates ATTY NAME ADDRESS Los Angeles, CA _____ T: F: E: Attorney for Defendant ************** SUPERIOR COURT OF CALIFORNIA

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FOR THE COUNTY OF LOS ANGELES ± CENTRAL COURT UNLIMITED JURISDICTION ) ) ) ) ) *************;*************;********** ) ) **;********* inclusive, ) ) Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ************************ Plaintiffs, vs. Case No.: BC ******** [Assigned For All Purposes To The Honourable *********, Department **] REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT Complaint Filed: ******* Date: **** **, 2011 Time: 8:30 AM

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT

Defendant *********** (hereinafter ³ABCD´) submits the following Memorandum of Points and Authorities in support of their Reply to the Opposition to the Demurrer to Plaintiff¶s
______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 1

FACTS 1) In their complaint plaintiffs ***********aka ***********aka ***********and *********** (heretoforward ³Plaintiffs´) exhibit they provided Defendant ***********a cheque in the amount of $000. ³Defendants.000.000. 2007 defendant loan broker *********** ABCD falsely and fraudulently and with malicious intent to defraud and deceive plaintiffs.00) whereby defendant ***********on behalf of defendants ***********. and each of them. their previous agreement was again made secure through an additional written Straight Note Secured by Deed of Trust in the sum of One hundred Ten Thousand Dollars ($110. and with ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 2 . promised to repay the sum of $200.00) (see plaintiffs complaint exhibit ³3´) Absent from Plaintiffs complaint is evidence stating the sum of $200.00 was ever tendered. inclusive. Page *. they allege that ³on or about October **. [named in the third cause of action which excludes Defendant *********** ABCD] and each of them. as plaintiff alleges.000. plaintiffs complaint exhibit ³2´) Complaint page 5 lines *** of Paragraph **states that this loan was ³pursuant to written promissory note signed by defendant *********«´ 2) In Plaintiffs complaint.00. LLC.000. nor is it alleged in plaintiffs complaint that $200. *********** and Does 1 to 100. failed to repay the promised sum along with the interest.00 received from plaintiff ***********´ Page * lines 14 of paragraph 32.000. Paragraph 74 states that ³on or about October. Lines *-**** of paragraph 32.´ (Page* Lines 18-24 Paragraph 33). Line 3.00. 2007 the oral agreement was secured by a written Straight Note Secured by Deed of Trust in the sum of Two Hundred Thousand Dollars ($200. as additional consideration because. 3) Plaintiffs complaint Page **.00 was tendered by Plaintiff to Defendants. Plaintiffs complaint only alleges that defendants ³promised to repay the sum of $200.1 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 Complaint.000. 2007. (see.000. dated September *th.

00 loan will be paid off within three months [emphasis added] because I will obtain bank loans secured by the two hotels as collateral. Further. Plaintiff concludes against the fact that complaint is be time barred. DISCUSSION Rather than setting forth logical/straight forward grounds for the ninth cause of action. PLAINTIFFS NINTH CAUSE OF ACTION FOR FRAUDULENT INDUCEMENT TO CONTRACT/FALSE PROMISE AGAINST *********** ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 3 .000.*********** LLC. Despite Plaintiffs walk through the allegations to establish that all elements of fraud have been pled. and *********** and has not addressed Plaintiffs demurrer stating that plaintiff fails to lay the predicate for civil conspiracy/joint and several liability. Contrary to Plaintiffs assertion.000. Additionally.¶´ 4) The ³$200. Plaintiff assertions remain deficient in directly and specifically establishing the elements necessary to state that their cause of action for fraud and deceit based on promissory fraud. Plaintiff has concocted a nonsensical theory alleging a conspiracy among Defendants. 1. *********** ABCD.00. ***********. without asserting any facts suggesting there was privity among *********** (³***********´)***********. 2007 (see complaint Exhibit ³1´) 5) Plaintiffs only include defendant *********** ABCD within the Ninth Cause of Action.000.1 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 the specific intent to induce plaintiffs to enter into the loan of $200. the facts disclosed within the complaint demonstrate on its face that the time at which the statute runs begins when knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud.00 loan´ at which is Plaintiffs makes an inducement claim in the Ninth Cause of action against Defendant *********** ABCD was executed on October 17. thus putting him on inquiry is established. orally represented and promised plaintiffs that µYour $200.

page 2). Plaintiffs-appellants. the facts on the face of the complaint clearly and convincingly demonstrate that plaintiff had knowledge of the facts sufficient to make a reasonably prudent person suspicious of fraud. should they be actually reliant on the statements of Defendant ABCD or a similar representation. Defendant-appellee 934 F. ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 4 . 20th Century Insurance Company. Exhibited in Plaintiffs Complaint as Exhibit ³1´ is October **th. the Complaint against Defendant *********** ABCD is Time-Barred. 2007) Plaintiffs. ³Under the California statute of limitations for fraud. et al. by January 17. v. 1/17/2008. whereby plaintiff premises his objection on ³It is not enough that he complaint might be barred. thus. Since the case at bar was filed April 7. Constructive notice is knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud. thus putting him on inquiry. However.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 ABCD REMAINS TIME-BARRED Plaintiffs argue that Defendant *********** ABCD¶s demurrer on the grounds that the Plaintiffs cause of action for Fraudulent Inducement to Contract/False Promise is time barred is ³not well taken´(Pl¶s Opp.. knew that the statements at issue were made in October of 2007 and performance was to be completed ³within 3 months´.´ Jacqueline R. Therefore the Statute would have certainly run as of January 17. Michael Harrell. and Bradley Scott. would be on notice of inquiry at the time performance was due. 2007. the three-year period does not begin to run until the plaintiff has actual or constructive notice of the facts constituting the fraud. Gibson. 2011. The court should take judicial notice of the fact that the loan agreement date. Defendant. the statue runs in favour of the Defendant *********** ABCD because plaintiffs. or a person in similar circumstances. 2011. well after the statute has run.´ citing Marshall v. Dunn & Crutcher.. (three months later from the Loan Date of October **h.2d 203 (1991) Here. or a reasonable person. Harrell. thus putting him on inquiry. 2008. It is clear then that the time for performance would have been at the latest January 17 of 2008.

Ct. and with the specific intent to induce plaintiffs to enter into the loan of $200. Pacific Transp. the requisite standard for specificity is not met. Here.140. ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 5 . While Plaintiff merely points to the alleged promises. 1997) ³Pleading´ section 681. Ct. Plaintiff contends that in Paragraph 74 of the complaint ³every element necessary to state a cause of action for fraud and deceit or based on promissory fraud is directly and specifically alleged´ Pl. or a copy of the instrument must be attached and incorporated by reference. neither had been carried out. As explained in the Demurrer. Co.00 loan will be paid off within three months because I will obtain bank loans secured by the two hotels as collateral. they has not set forth the material terms.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 2. 2007 (when) in Los Angeles California (where) defendant loan broker *********** ABCD (who) falsely and fraudulently and with the malicious intent to defraud and deceive plaintiffs. orally (how representation was made) represented and promised plaintiffs that µYour $200. App. 12 Cal.00.000. if an action on an alleged violation of an agreement. asserting that all the sub elements of fraud are satisfied as alleged. while they refer to Exhibit 3 of their Complaint by referencing the Note Secured by Deed of Trust in satisfying the existence of the promise or a contractual obligation at which plaintiff could seek recovery. California Procedure (4th ed. 1985). 2d Dist. However. Plaintiff¶s complaint remains conclusory on the face because while the allegations are pled. allegations of fraud are evaluated under a heightened pleading standard and must be pled with specify. They has not attached any document in support of the existence of the promises.. According to the Opposition to the Demurrer. the alleged promises include. as plaintiff demonstrated in his opposition.000.¶ (what promised)´. ³October. Superior Court (1985) 164 Cal. App. the terms must be set out verbatim in the body of the complaint. PLAINTIFF HAS NOT PROPERLY PLED THE REQUIRED ELEMENTS OF FOR FRAUDULENT INDUCEMENT TO CONTRACT/FALSE PROMISE. S. under Tyco Industries v. App. Under Otworth v. 3d 452. Witkin. Sup. 166 Cal. 645 (1996). p. see Lazar v. 459 (Cal. Opp. 156. page 4 line 20-21. 3d 148. 4th 631..

Ct. 645 (1996). Plaintiff¶s complaint and Objection merely includes a statement that µ³Plaintiffs reasonably believed and relied on said representations and promises made by said defendants acting on behalf of their co-defendants. 12 Cal. Service by Medallion. Page 5 In light of Plaintiffs conclusory allegation.. subsequent nonfulfilment does not establish fraudulent intent at the time the claimed representation was made. 1816 (Cal. // // A. Page 4. Plaintiffs baseless statements do not meet the threshold requirements for the heightened pleading standard for Fraud. v. Fenner ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 6 . Pierce. Moreover. plaintiffs were induced to take the actions detailed hereinabove and hereinbelow. Pl. Clorox Co. Sup. the lack of an intent to perform is not the same as an intent to induce reliance. because they had no reason to doubt their accuracy. and does not identify at all.. See Atascadero 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 Exhibit C is merely a Note.¶s Opp. Ct. 4th 1807. information demonstrating reliance upon defendant *********** ABCD. see Lazar v. App. Defendant *********** ABCD¶s alleged lack of intent to perform does not establish the element of intent to induce justifiable reliance. To the contrary. PLAINTIFF HAS NOT PROPERLY PLED THE DEFENDANT *********** ABCD¶S INTENT TO INDUCE JUSTIFIABLE RELAINCE Plaintiffs Complaint and Opposition blindly contends that Defendants intended for Plaintiff to justifiably rely on their supposed representations.¶ (Justifiable reliance)´ Pl. the absence of ³any intention to deliver and perform the promises and representations made by defendants´ is not the type scienter required for a claim for fraud. Merrill Lynch. 1996) B. Inc. App 6th Dist.¶s Opp. PLAINTIFF HAS NOT PROPERLY PLED THE DEFENDANT *********** ABCD¶S FRAUDULENT INTENT Plaintiff claims that Defendant *********** ABCD¶s fraudulent intent is shown by nonfulfilment of the supposed promise. 44 Cal. and in reliance upon said defendants¶ representations. 4th 631.

PLAINTIFF HAS NOT PROPERLY PLED DEFENDANT *********** ABCD¶S KNOWLEDGE OF THE FALSITY OF HIS REPRESENTATION Plaintiffs claim that the Complaint sufficiently pleads that Defendant *********** ABCD knew of the falsity of his statement. Clorox Co.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 & Smith. 4th 445. Inc. v.. To the contrary. 4th 631. App. inc. Ct. Fraud must be pled with particularity and clearly.. 482 (Cal. Sup. PLAINTIFFS HAVE NOT ADDRESSED THE DEFENDANT *********** ABCD¶S CONTENTIONS. despicable not caring about plaintiffs¶ interests and maliciously scheming to increase their own profits at plaintiffs¶ expense. 3. 1998).¶s Opp. 645 (1996). with the despicable intent to increase their profits at plaintiffs¶ expense. It matters to a fraud cause of action the time at which the allegation intention was formed. REGARDING PLAINTIFFS NOT PLEADING THE ELEMENTS OF AN ACTION FOR CIVIL ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 7 . 1st Dist. Page 4. 68 Cal. Plaintiff argues µ³ each of said representations and promises made by said defendant(s) were false and then know by said defendants to be false in that said defendants despicably knew that defendants had no present intent to perform their promises and commitments to plaintiffs and instead intended all along to not perform or honor the representations and promises made. the Complaint lacks any allegations regarding Defendant *********** ABCD¶s knowledge of the falsity of his representation at the time it was made. and has failed to do so. Plaintiff needs to show a scheme to defraud them at the time the alleged promise was made. 44 Cal. (scienter)´ Pl. App 4th at 1816. see Lazar v. See Service by Medallion. App. and Plaintiffs have not pled the knowledge element of their claim with particularity or clarity. Ct. COMMON TO EACH OF THE CAUSES OF ACTION. 12 Cal. Plaintiff has presented no facts which suggest that Defendant *********** ABCD intended for Plaintiff to rely on any misrepresentations. // // C.

Because Plaintiffs have only contested the inadequacy of their pleading with regard to the representations of joint and several liability common to all causes of action. 3) that case law holds that potential liability cannot arise out of participation in the conspiracy alone. and. (citations within Defendants Demurrer) that these assertions within the Demurrer should be deemed admitted. Plaintiffs Opposition has not addressed the Demurrer¶s arguments on their failure to properly plead allegations common to each of the causes of action for civil conspiracy laying the predicate for joint and several liability to which *********** ABCD may be subjected. Defendant *********** ABCD respectfully requests that Defendant *********** ABCD be severed from this action.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 CONSPIRACY. 2011 28 ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 8 . nor did Plaintiff allege that Defendant *********** ABCD provided substantial assistance or encouragement to his co-defendants as to satisfy the elements of civil conspiracy. CONCLUSION Based on the foregoing. Plaintiffs in their Complaint did not allege that Defendant *********** ABCD specifically and actually knew that the conduct of his codefendants constituted a breach of duty. THUS PLAINTIFF FAILS TO LAY A PREDICATE FOR JOINT AND SEVERAL LIABILITY TO WHICH *********** ABCD MAY BE SUBJECTED. 2) plaintiff did not attribute facts to Defendant *********** ABCD as to satisfy the factual threshold of ³action´ to subject him to potential liability within the meaning of case law. Dated July **. that the Demurrer be sustained as to the above causes of action alleged in the Complaint without leave to amend. Because Plaintiffs omission to discuss the other defects of their Complaint as raised in the Demurrer the arguments set forth in the Demurrer must be deemed admitted. the Demurrer¶s assertions with regard to: 1) Plaintiffs failure to attribute an independent wrong to Defendant *********** ABCD within the meaning of case law.

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 *********** By:_________________________________ *********** Attorney for Defendant *********** ABCD ______________________________________________________________________________________ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF¶S COMPLAINT 9 .

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