Docstoc

fernandez_opp_demur

Document Sample
fernandez_opp_demur Powered By Docstoc
					 1
 2   PETER D. GORDON, ESQ., SB No. 76578
     PETER D. GORDON & ASSOCIATES
 3   8052 Melrose Avenue, Second Floor
     Los Angeles, California 90046-7015
 4   Tel: (323) 651-5111
 5   Fax: (323) 651-3726

 6   Attorney for Plaintiffs JOSE FERNANDEZ,
     PETER D. GORDON, MYRIAM GORDON
 7
 8
 9                    SUPERIOR COURT OF THE STATE OF CALIFORNIA
10                              FOR THE COUNTY OF RIVERSIDE
11
     JOSE FERNANDEZ, an individual; PETER ) Case No. INCR404806
12   D. GORDON, an individual, and MYRIAM )
13   GORDON, an individual,               ) PLAINTIFFS’ OPPOSITION TO
                                          ) DEFENDANT’S DEMURRER
14                       Plaintiffs,      )
                                          )
15         vs.                            )
16                                        )
     STEVEN M. CLOSE, an individual; and  )
17   DOES 1 - 20, inclusive,              )
                                          )
18                                        )
19                                        )
                                          )
20                        Defendants.
21
22
            Plaintiffs, JOSE FERNANDEZ, PETER D. GORDON, and MYRIAM GORDON,
23
     respectfully submit the following Memorandum of Points and Authorities in Opposition to the
24
25   Notice of Demurrer and Demurrer to Plaintiff’s Complaint filed by Defendant STEVEN M.

26   CLOSE.
27
28
     I. FACTUAL INTRODUCTION
 1
 2          This is the case of a simple purchase sale transaction in which the Seller, Steve Close, had

 3   seller’s remorse and is trying to back-out of an agreement that he entered into on October 2, 2003.
 4   Plaintiff Jose Fernandez, on his own behalf and/or as assignees Plaintiffs Peter D. Gordon and
 5
     Myriam Gordon, offered to purchase the single-family house located at 1281 Catalpa Avenue,
 6
     Desert Hot Springs, California, 92240 for the purchase price of $225,000. The sum was fair, just,
 7
 8   and reasonable as to Seller Close, and the Seller accepted said offer by initialing each page and

 9   counter-signing the Standard California Residential Purchase Agreement and Joint Escrow
10   Instructions Form on October 2, 2003. Subsequently, when the terms of the transaction were
11
     transferred into an escrow, Close attempted to back-out of the transaction and repudiate its terms.
12
     At the present, Plaintiff is unaware whether or not Steve Close ever actually signed the Fidelity
13
14   National Title Company Escrow Instructions, for Escrow No. 5533188-TS, dated October 16,

15   2003. However, the simple fact holds true that Jose Fernandez, on his own behalf, and on behalf

16   of an assignee, offered to purchase the subject house for $225,000. The offer was accepted, and it
17
     was initialed and counter-signed on every page including its final page by Defendant Close.
18
     Wherefore, the subject action for Breach of Contract, Specific Performance and Fraud should be
19
     upheld in the form of the combined Judicial Council Form pleading and the standard pleading set
20
21   out in the Complaint on file in this matter.

22
23
     II. STANDARDS FOR PLEADINGS AND DEMURRERS
24
     A. Pleadings are to be construed liberally in the interest of justice
25
            California Code expressly mandates that a complaint will be construed liberally with a
26
27   view to substantial justice between the parties. CA Code Civ. Proc. § 452; Stevens v. Sup.Ct.

28
     (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601; 89 Cal.Rptr.2d 370, 374. The policy
 1
 2   is to ensure that cases are tried on their merits, rather than disposed of on technicalities. Taylor

 3   v. S & M. Lamp Co. (1961) 190 Cal.App.2d 700, 703; 12 Cal.Rptr. 323, 325. The California
 4   Supreme Court has announced, “Any rule that penalizes a plaintiff for the mere form in which
 5
     the pleadings are cast is inherently unfair and deserves to be discarded.” Barrington v. A.H.
 6
     Robins Co. (1985) 39 Cal.3d 146, 157; 216 Cal.Rptr. 405, 412.
 7
 8          In general, a complaint need only be pleaded in sufficient detail to apprise the defendant of

 9   the basis upon which the plaintiff is seeking relief. Perkins v. Sup.Ct. (General Tel. Directory Co.)
10   (1981) 117 Cal.App.3d 1, 6; 172 Cal.Rptr. 427, 430. “There is no need to require specificity in the
11
     pleadings because modern discovery procedures necessarily affect the amount of detail that should
12
     be required in a pleading.” Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592,
13
14   608; 98 Cal.Rptr.2d 277, 288. As a practical matter, California courts have adopted a de facto

15   “notice pleading” standard (with exceptions discussed below). Rutter Group Practice Guide, CA

16   Civil Procedure Before Trial, 6:128.
17
     B.     To be demurrer-proof, a Judicial Council Form cause of action need only state the
18             essential elements of the cause of action

19          Plaintiffs submit their pleadings on an Official Form complaint and causes of action, as
20
     authorized by the Judicial Council in CCP § 425.12. To be demurrer-proof, an Official Form
21
     complaint must contain whatever “ultimate facts” are essential to state a cause of action under
22
     existing statutes or case law. People ex rel. Dept. of Transp. v. Sup.Ct. (Verdeja) (1992) 5
23
24   Cal.App.4th 1480, 1484; 7 Cal.Rptr.2d 498, 500. The ultimate facts are the essential elements of

25   the cause of action. Rutter Group, supra 6:124. “Ultimate facts” are not to be confused with
26
     evidentiary matters, which have no place in pleadings. On the other hand, the distinction between
27
28
     ultimate facts and “conclusory allegations” is of diminishing importance in today’s courts.
 1
 2   Perkins, supra, 117 Cal.App.3d at 6; 172 Cal.Rptr. at 429.

 3
 4
     III. PLAINTIFFS’ BREACH OF CONTRACT ALLEGATIONS STATE A CAUSE OF
 5   ACTION WITH SUFFICIENT CERTAINTY

 6   A. Plaintiff raises a “Special Demurrer” against the Breach of Contract Cause of Action
 7
 8          California law allows defendants to file a “special demurrer” where the pleading is

 9   uncertain. “’Uncertainty’ includes ambiguous and unintelligible.” [CCP § 430.10(f)]. A special
10   demurrer does not address the entire cause of action. Rather, it must specify exactly where each
11
     uncertainty appears, by reference to page and line numbers of the complaint. Fenton v. Groveland
12
     Community Services Dist. (1982) 135 Cal.App.3d 797, 809; 185 Cal.Rptr. 758, 765. If any facts
13
14   within the cause of action are sufficient to establish a case or controversy, the special demurrer

15   notwithstanding, that cause of action must be allowed.

16          Defendant’s demurrer, Heading III, page 1, states, “Plaintiffs’ Breach of Contract
17
     allegations are ambiguous and uncertain.” This is therefore a special demurrer.
18
     B. Special Demurrers are subject to very high scrutiny
19
            California courts very rarely sustain special demurrers. “Demurrer for uncertainty will be
20
21   sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e. he

22   or she cannot reasonably determine what issues must be admitted or denied, or what counts or
23
     claims are directed against him.” Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616;
24
     17 Cal.Rptr.2d 708, 710.
25
            Demurrers for uncertainty will almost certainly be overruled where (1) directed to
26
27   inconsequential matters, (2) the facts alleged in the complaint are presumptively within the

28
     knowledge of the demurring party or ascertainable by discovery, or (3) not dispositive of one or
 1
 2   more causes of action. Khoury, supra, 14 Cal.App.4th at 616; 17 Cal.Rptr.2d at 710.

 3   C. The essential terms of the contract are described with adequate certainty
 4          First, defendant claims that he “cannot ascertain the essential terms of the alleged
 5
     agreement” because the underlying contract is not attached to the complaint, and because plaintiffs
 6
     do not adequately plead the specific terms of the agreement.
 7
 8          A written contract may be pleaded “generally according to its legal intendment (sic) and

 9   effect (e.g., Defendant agreed to sell the described property to Plaintiff for $100,000).” Scolinos v.
10   Kolts (1995) 37 Cal.App.4th 635, 640; 44 Cal.Rptr.2d 31, 34. In the contract cause of action,
11
     plaintiffs adequately describe the general terms of the contract as “written agreement followed by
12
     written escrow instructions setting out the terms for the sale of the property at 1281 Catalpa
13
14   Avenue, Desert Hot Springs, California for the sum of $225,000 to Plaintiffs herein.”

15          Moreover, the terms of the contract (to the extent that they are relevant at the pleading

16   stage) are presumptively within the knowledge of defendants, or ascertainable by discovery. That
17
     is another compelling reason to overrule this special demurrer.
18
            Finally, the form on which the complaint is pleaded does not require the contract to be
19
     attached. The form allows the option of checking the boxes, “The essential terms of the agreement
20
21   are as follows,” and to provide a summary.1 Thus, plaintiffs are expressly authorized to describe

22   the contract as they do.
23
     D. Plaintiffs are identified with adequate certainty
24
             The next special demurrer says that defendant is “unable … to determine who are the
25
26
            1
             The Form Complaint’s footer reads, “Form Approved by the Judical Council of California,
27   Rule 982.1(21).”
28
     alleged plaintiffs” because the complaint identifies the parties to the agreement as “Jose Fernandez,
 1
 2   or Assignee, namely, co-Plaintiffs Peter D. Gordon and Myriam Gordon.”

 3          When the complaint contains enough facts to apprise defendant of the issues it is being
 4   asked to meet, failure to label each party / cause of action is not ground for demurrer. “The lack of
 5
     labels does not substantially impair (defendant’s) ability to understand the complaint.” Williams v.
 6
     Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139; 229 Cal.Rptr. 605, 607.
 7
 8          In addition, plaintiffs respectfully request the court to make judicial notice of the fact

 9   that designating the buyer as “[named individual] or assignee” is standard procedure in real
10   property contracts. In this cause of action, indeed, the assignees are actually named.
11
     E. Plaintiff’s placement of the 1031 tax exchange within the pleadings is an
12   inconsequential matter
            In paragraph 8 of the demurrer, defendant avers uncertainty over whether plaintiffs regard
13
14   the 1031 tax exchange as an “essential term” of the agreement. The alleged uncertainty stems from

15   plaintiffs’ first mention of the tax exchange in paragraph BC-2 (discussion of defendant’s breach)

16   rather than paragraph BC-1 (description of the contract).
17
            A court must “afford a reasonable interpretation of the complaint read as a whole with its
18
     parts in context.” Blank v. Kirwan (1985), 39 Cal. 3d 311, 318; 216 Cal.Rptr. 718, 721. Whether
19
     the 1031 tax exchange is placed in Paragraph BC-1 or Paragraph BC-2 of the cause of action is an
20
21   inconsequential matter. It is not dispositive of the cause of action, but is a matter of form and

22   plaintiffs’ subjective state of mind when drafting the pleadings. Consequently, justice would be
23
     frustrated by sustaining the demurrer on this basis.
24
     F.     Defendant’s General Demurrer Against the Breach of Contract Cause of Action Is
25            Not Supported By Any Points or Authorities
26
            In paragraph 9 of the demurrer, defendant states simply, “the plaintiffs have failed to state
27
28
     facts sufficient to state a cause of action for Breach of Contract.” This is apparently an attempt to
 1
 2   raise a general demurrer against the cause of action (see discussion below). However, this claim is

 3   not supported by any examples or references to the cause of action.
 4          By following the format of the Judicial Council Form, plaintiffs ensure that they plead all
 5
     essential elements of a Breach of Contract cause of action: Formation of a contract (par. BC-1),
 6
     breach of the contract (par. BC-2), plaintiff’s performance (par. BC-3), and damages proximately
 7
 8   caused by the breach (par. BC-4). Facts are provided wherever prompted by the pleading form.

 9   Defendant fails to explain how these elements and facts are generally insufficient to state a cause
10   of action.
11
     IV.    PLAINTIFFS PROPERLY PLEAD A CAUSE OF ACTION FOR FRAUD
12
     A. Plaintiffs state facts sufficient to constitute a cause of action for Fraud
13
14          A general demurrer is an assertion that “the pleading does not state facts sufficient to

15   constitute a cause of action.” CCP § 430.10(e). Assuming that the facts alleged in the complaint

16   are true, if they state any valid cause of action, the complaint is good against a general demurrer.
17
     Adelman v. Associated Int’l Ins. Co. (2001), 90 Cal.App.4th 352, 359; 108 Cal.Rptr.2d 788, 792.
18
     A general demurrer can lie to a single cause of action, but not to just part of a cause of action. If
19
     there are any sufficient allegations to entitle plaintiff to relief, other allegations can not be
20
21   challenged by general demurrer. PH II, Inc. v. Sup. Ct. (Ibershof) (1995) 33 Cal.App.4th 1680,

22   1682; 40 Cal.Rptr.2d 169, 171.
23
            In paragraphs 10 - 13 of the demurrer, directed against the cause of action for fraud,
24
     defendant asserts that plaintiffs plead “conclusory allegations,” and have “failed to specifically
25
     plead facts constituting fraud.” This is therefore a general demurrer.
26
27          1. Standard of Review for General Demurrer Against Fraud Cause of Action

28
            The particularity requirement for fraud necessitates pleading facts that show “how, when,
 1
 2   where, to whom, and by what means the representations were tendered.” The pleading can not be

 3   dismissed if “defendant cannot persuasively complain it misunderstands the fraud claim.”
 4   Charpentier v. Los Angeles Rams Football Company, Inc. (1999), 75 Cal.App.4th 301, 312; 89
 5
     Cal.Rptr.2d 115, 123.
 6
            2. Judicial Council Form Provides All Essential Elements of Fraud Cause of Action
 7
 8          Every element of the cause of action must be alleged in the proper manner. L’Esperance v.

 9   North American Aviation, Inc. (1963) 217 Cal.App. 2d 336, 433; 31 Cal.Rptr. 873.
10          By pleading on Judicial Council Forms, plaintiffs ensure that they allege all essential
11
     elements of a fraud cause of action. Those elements that are raised by the demurrer are discussed
12
     in turn below:
13
14                    a. “Misrepresentation” and “Promise Without Intent to Perform” are
                      properly pleaded by describing defendant’s promise to sell and subsequent
15                    refusal to perform

16
17          “A promise to do something necessarily implies the intention to perform, and where such

18   intention is absent, there is an implied misrepresentation, which is actionable fraud.” 5 Witkin

19   Sum. Cal. Law Torts § 685; C.C. 1710(4); Cicone v. URS Corp. (1986) 183 Cal.App. 3d 194, 203;
20
     227 Cal.Rptr. 887.
21
22
23
24
25
26
27
28
            The demurrer argues that plaintiffs do not sufficiently indicate “what was said by whom, or
 1
 2   in what manner.” However, the complaint clearly states that the defendant promised to sell the

 3   property at Catalpa Ave., in the manner of a written agreement. (See paragraphs BC-1 and FR-2).
 4   Since the transaction was written, the detailed terms are on record to be discovered. “If, as it
 5
     complains, [defendant] is confused as to who made the representations and by what means, a little
 6
     discovery should clear that up.” Charpentier, supra, 75 Cal.App. 4th at 305 – 306.
 7
 8          When pleading fraud, “even under the strict rules of common law pleading, one of the

 9   canons was that less particularity is required when the facts lie more in the knowledge of the
10   opposite party.” Committee on Children’s Television, Inc. v. General Foods Corp. (1983), 35
11
     Cal.3d 197, 216; 197 Cal.Rptr. 783, 795. Defendant’s intent is necessarily more within his own
12
     knowledge than plaintiff’s. Therefore, defendant’s lack of intention may be demonstrated with
13
14   circumstantial evidence such as subsequent conduct. See e.g. Jarkieh v. Badagliacco (1946) 75

15   Cal.App. 2d 505; 170 P.2d 994 [“The subsequent repudiation relates back to the original

16   promise.”] Plaintiffs plead that defendant has refused to convey the subject property. [Paragraph
17
     FR-2.] This provides sufficient circumstantial evidence to believe that defendant lacked intent to
18
     carry out the sales agreement.
19
            Consequently, the elements of “misrepresentation” and “promise without intent to perform”
20
21   are properly pleaded.

22                  b. Plaintiffs properly plead “Concealment”
23
            The complaint pleads, “Defendant concealed or suppressed material facts by telling
24
     plaintiff other facts to mislead plaintiff and prevent plaintiff from discovering the concealed or
25
     suppressed facts …. Plaintiff was unaware of the concealed or suppressed facts.” [Paragraph FR-
26
27   3].

28
            Again, since the act of concealment is more within defendant’s knowledge than plaintiffs’,
 1
 2   great particularity of pleading is not required. Plaintiffs have reason to believe that defendant

 3   concealed his true intention by the circumstantial evidence that: (1) Defendant subsequently
 4   repudiated the agreement and (2) Plaintiffs were unaware that defendant would subsequently
 5
     repudiate the agreement.
 6
                    c.   Plaintiffs properly plead reliance on defendant’s misrepresentations
 7
 8          In paragraph FR-5, the fraud cause of action says, “In justifiable reliance upon Defendant’s

 9   promises, Plaintiffs were induced to act and pay into escrow almost $50,000 …”
10                  d. Materiality is a question of fact, not a pleading issue
11
            Paragraph 12 of the demurrer says, “In order to constitute actionable fraud, the alleged false
12
     representation must be of a material fact.”
13
14          Materiality can not be resolved in the pleadings. It is a question of fact that must be left to

15   the jury. “A court may only withdraw the case from the jury if the fact misrepresented is so

16   obviously unimportant that the jury could not reasonably find that a reasonable man would have
17
     been influenced by it.” Charpentier, supra, 75 Cal.App.4th at 313; 89 Cal.Rptr.2d at 124.
18
            In the present case, the fact misrepresented was the intent to sell real estate, partly for
19
     residential purposes, for an amount over $200,000. A promise to sell a home is important enough
20
21   to influence a reasonable man to depend on it. Hence, the question of materiality must be left open

22   for a fact-finder, and can not be adjudicated before trial.
23
24
25
26
27
28
 1
 2   B. Defendant’s special demurrers against the Fraud cause of action are not compelling when
        the allegations are assumed true
 3
 4          Paragraphs 14 – 20 of the demurrer attack terms of the Fraud cause of action for being
 5
     “ambiguous and uncertain.” These are special demurrers and, as discussed supra, are not to be
 6
     sustained unless they render the complaint “so bad that the defendant cannot reasonably respond.”
 7
 8   Khoury, supra. If any facts within the cause of action are sufficient to establish a case or

 9   controversy, the special demurrer notwithstanding, that cause of action must be allowed. Fenton,
10   supra,135 Cal.App.3d at 809; 185 Cal.Rptr. at 765. Most of the special demurrers simply reiterate
11
     the charges from the general demurrer.
12
            Defendant adds the comment, “Plaintiffs have pled representations as to defendant’s
13
14   alleged intentions which, if subsequently are proven to be false … would be a breach of contract

15   and not regarded as actionable deceit.” [Demurrer par. 15]. However, for the purpose of testing

16   the sufficiency of the cause of action, the demurrer admits the truth of all … ultimate facts alleged.
17
     Adelman v. Associated Int’l Ins. Co. (2001), 90 Cal.App.4th 352, 359; 108 Cal.Rptr.2d 788, 792.
18
     If the alleged intentions are true (as they must be assumed) then they state a cause of action for
19
     fraud. [Emphases added].
20
21
22
23
24
25
26
27
28
 1
 2   V. PLAINTIFFS ADEQUATELY STATE A CAUSE OF ACTION FOR SPECIFIC
     PERFORMANCE
 3
 4
            A. Establishing Certainty of Contract is Not Necessary for Pleadings
 5
 6          Defendant quotes Civ. Code § 3390.5:         “The court cannot specifically enforce an
 7   agreement, the terms of which are not sufficiently certain to make the precise act which is to be
 8
     done clearly ascertainable.”
 9
            § 3390.5 pertains to the enforceability of specific performance. It is not germane to the
10
11   standards of pleading.

12      B. The Cause of Action can be Easily Amended to Support the Conclusion that the
           Contract is Fair and the Consideration Adequate for Defendant
13
14          Next, defendants say that the complaint fails to allege facts supporting the conclusion that

15   the contract is fair and the consideration adequate for the defendant. As defendant admits in the

16   demurrer, a mere assertion that the offer was in the amount of the property’s fair and reasonable
17
     value is sufficient to meet this requirement. If necessary, the cause of action could easily be
18
     amended to add this assertion.
19
     VI. QUIET TITLE IS AVAILABLE AS A REMEDY IF SUPPORTED BY
20
     ALLEGATIONS, EVEN IF NOT PLEADED EXPLICITLY
21
            Finally, the demurrer attempts to block any possible relief by Quiet Title. The demurrer
22
     notes that Quiet Title is mentioned only once, in Paragraph 10d of the complaint, and is not
23
24   discussed again in any cause of action.

25          With pleadings construed liberally, a plaintiff need not plead every possible cause of
26
     action, as long as there would be some remedy available under the facts alleged. As long as
27
28
     any one cause of action would provide remedy, the complaint is good against a general
 1
 2   demurrer.    It is not necessary that the cause of action be the one intended by the plaintiff.

 3   Adelman, supra, 90 Cal.App.4th at 359; 108 Cal.Rptr.2d at 792. “Erroneous or confusing
 4   labels attached by the inept pleader are to be ignored if the complaint pleads facts which would
 5
     entitle the plaintiff to relief.” Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908; 274
 6
     Cal.Rptr. 186, 188. Therefore, plaintiff’s failure to expound on the Quiet Title plea does not
 7
 8   preclude its availability as relief. It certainly does not subject the entire complaint to defeat by

 9   general demurrer.
10   VII.   PLAINTIFFS RESPECTFULLY REQUEST LEAVE TO AMEND PLEADINGS
11          WHERE THE COURT DEEMS NECESSARY

12          Defendant prays that the complaint should be dismissed without leave to amend. This
13   request is not in keeping with customary procedure or case law. “Liberality in permitting
14
     amendment is the rule, if a fair opportunity to correct any defect has not been given.” Stevens,
15
     supra, 75 Cal.App.4th at 601; 89 Cal.Rptr.2d at 374. In fact, in the case of an original complaint
16
17   such as the present one, “denial of leave to amend constitutes an abuse of discretion.” McDonald

18   v. Sup.Ct. (Flintknote Co.) (1986) 180 Cal.App.3d 297, 303-304; 225 Cal.Rptr. 394, 398.

19   Therefore, if the court finds faults within the complaint, leave to amend should be granted.
20
     VIII. CONCLUSION
21
            For the foregoing reasons, plaintiffs respectfully request that the demurrers to each cause of
22
     action be overruled. In the alternative, plaintiffs respectfully request the right to amend the
23
24   pleadings wherever necessary to fully state causes of action, or to resolve ambiguities or

25   uncertainties.
26
27
28
     Dated: May 27, 2004   Respectfully submitted,
 1
 2                                PETER D. GORDON, ESQ.

 3
 4                             By_________________________________
 5                               PETER D. GORDON, Attorney for
                                 Plaintiffs, JOSE FERNANDEZ, PETER D.
 6                               GORDON, AND MYRIAM GORDON
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:16
posted:8/31/2011
language:English
pages:14