demurrer to sacc - with exhibit (1) (1)

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Charles D. Marshall (State Bar No. 236444) MARSHALL LAW FIRM 2121 N. California Blvd., Suite 290 Walnut Creek, CA 92596 Telephone: (925) 575-7105 Facsimile: (855) 575-7105 [email protected] Attorney for Plaintiffs/Cross-Defendants KEITH PEARCE and JONI PEARCE

SUPERIOR COURT IF THE STATE OF CALIFORNIA

COUNTY OF CONTRA COSTA

UNLIMITED CIVIL CASE

KEITH PEARCE and JONI PEARCE, as individuals,

Plaintiffs,

vs. RAVINDRA REDDY a.k.a. Robbi Reddy, and DOES 1 through 100.

Defendants. RAVINDRA REDDY a.k.a. Robbi Reddy, an individual, Cross-Complainant, vs. KEITH PEARCE and JONI PEARCE, as individuals and DOES 1-100 Cross-Defendants.

Case No. CIVMSC 14-00208 CROSS-DEFENDANTS KEITH AND JONI PEARCES MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED CROSS COMPLAINT Date: Time: Location: Dept. 21 Judge: Judge Jill Fannin Trial Date: February 1, 2016

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT

CASE NO. CIVMSC 14-00208

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TABLE OF CONTENTS

I. INTRODUCTION ... 1

II. FACTUAL BACKGROUND . 2

III. LEGAL STANDARD .. 5

IV. ARGUMENT 6

A. Defendants Claims for Breach of Contract, Contributory Negligence and Intentional Infliction of Emotional Distress Were Dismissed Without Leave to Amend, and Thus Improperly Plead Here ... 6 B. Defendants Third Cause Of Action, For Fraud And Deceit, Is Uncertain Because It Lacks The Required Specificity Facts Sufficient to State A Claim . 6 C. Defendants Third Cause Of Action, For Fraud And Deceit, Also Fails To State Facts Sufficient To State A Claim 8 V. CONCLUSION . 11

i MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT


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TABLE OF AUTHORITIES

California State Opinions Blatty v. New York Times Co. (1986) 42 Cal.3d 1033 .................................................................................................................. 5 City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793 ........................................................................................................... 5 Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135 ....................................................................................................... 6 Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197 .................................................................................................................... 7 Consumer Cause, Inc. v. Arkopharma, Inc. (2003) 106 Cal.App.4th 824 ......................................................................................................... 5 Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566 ......................................................................................................... 6 Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772 ........................................................................................................... 7 Goodman v. Kennedy (1976) 18 Cal.3d 335 .................................................................................................................... 5 Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898 ............................................................................................................ 7 Halvorsen v. Aramark Unif. Servs. (1998) 65 Cal.App.4th 1383 .................................................................................................... 9, 10 Heckendorn v. City of San Marino (1986) 42 Cal.3d 481 .................................................................................................................... 6 Hendy v. Losse (1991) 54 Cal.3d 723 .................................................................................................................... 5 Lavine v. Jessup (1958) 161 Cal.App.2d 59 ............................................................................................................ 7 Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104 ............................................................................................................ 7 Vandervort v. Farmers & Merchants Nat'l Bank (1936) 7 Cal.2d 28 ........................................................................................................................ 8

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California State Statutes Cal. Code Civ. Proc., section 430.30 ............................................................................................... 5 Civ. Code, section 1709 ............................................................................................................. 8, 10 Civ. Code, section 1950 ................................................................................................................... 5

iii MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT


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MEMORANDUM

Plaintiffs and Cross-Defendants Keith and Joni Pearce (hereinafter the Plaintiffs), by and

through their attorney, respectfully ask the Court to dismiss Defendant and Cross-Plaintiff

Ravindra Reddys (hereinafter Defendant) Second Amended Cross Complaint (SACC) for

Breach of Contract; Fraud; Contributory Negligence; and Infliction of Emotional Distress in its

entirety.

I. INTRODUCTION

Plaintiffs rented a property for three months from the landlord Defendant. As part of the

lease agreement, Plaintiffs paid Defendant a $4,100 security deposit. At the end of the lease

agreement, Defendant claimed Plaintiffs did $899 in damage to the property, and informed

Plaintiffs that he would keep that portion of the security deposit, admitting the remaining

$3,201was due to Plaintiffs.1 Despite the admission, however, Defendant refused, and continues to

refuse, to refund any portion of the deposit, demanding Plaintiffs sign a release and waiver of

rights to receive even the amount of the deposit Defendant is obligated to pay Plaintiffs under

contract and statute. Defendant also refused to honor an agreement to rebate part of Plaintiffs last

months rent, a promise he made in exchange for Plaintiffs early vacation of the leased premises.

As a result, Plaintiffs sued Defendant for breach of contract, fraud, conversion, and violation of

landlord tenant statutes, seeking all civil penalties and remedies allowed under law.

In response, Defendant continues to refuse to refund even that portion of the security

deposit to which he admits he has no claim, and instead has now made three efforts to file a Cross

1 Plaintiffs dispute that any of damage was done to the leased property, but as required, for the purposes of Defendants demurrer, treat Defendants allegation as true.

1 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT


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Complaint. On March 5, 2015, this court entered an Order sustaining, with prejudice, Plaintiffs

demurrer to all but one of Defendants claims in his First Amended Cross Complaint. See copy of

the unopposed tentative order dated March 5, 2015, attached hereto as Exhibit A. Nonetheless,

Defendants SACC repleads all of the same claims from the first claim, regardless of the fact that

he was not granted leave to amend his causes of action for Breach of Contract, Contributory

Negligence, or Intentional Infliction of Emotional Distress. The only claim Defendant was

granted leave to amend was the claim for Fraud and Deceit, and that claim fails for all the same

reasons it did in the First Amended Cross Complaint.

For the reasons discussed in more detail below, Defendants SACC cannot stand and there

are no facts under which Defendant can amend to cure the deficiencies. Accordingly, Plaintiffs

demurrer should be sustained without leave to amend.

II. FACTUAL BACKGROUND

In June 2013, Plaintiffs moved to California and sought a furnished rental property for

temporary lease while looking for a house to buy. See CC 7; FACC 8, 9; and SACC 8, 9.

On June 26, 2013, Plaintiffs entered into a Residential Lease Agreement (Lease Agreement)

with Defendant for the property known as 1973 Ascot Drive, Unit B, Moraga, California.

(Leased Property). CC 8 and Ex. A; FACC 11 and Ex. A.; and SACC 7, 11; and RJN,

Ex. A.2 The term of the Lease was three monthsbeginning August 1, 2013 and ending on

2 Defendant attached the Lease Agreement and other documents as exhibits to the original CC and the FACC , but did not attach it to the SACC. Plaintiffs claimseven his claim for Fraud and Deceitrely heavily on the Lease Agreement. In actions based on a contract, a demurrer is properly sustained where the complaint or cross complaint fails to attach the subject contract. See, Coconut Global v. Banca Fin., Defendant And Respondent, 2007 Cal. App. Unpub. LEXIS 4464, 7 (Cal. App. 4th Dist. June 1, 2007); citing to Otworth v. Southern Pac. Transportation Co. (1985)



(footnote continued)

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October 31, 2013 with an option to renew month-to-month afterward if necessary. See CC 9,

Ex. A, 4 and 13; FACC 13, Ex. A, 4 and 13; RJN, Ex. A.3

The Leased Property was to be occupied by Plaintiffs Keith and Joni Pearce, their children

Alden and Nathan, as well as one cat and one dog. See, CC 8, Ex. A, 5; FACC 11, Ex. A, 5;

SACC 11, RJN, Ex. A, 5.The rent, $3,600 per month, was due the 1st of each month, with the

last months rent paid in advance. See, CC 9; FACC 12, Ex. A, 6 and 9(c); SACC 12; and

CDM Decl. Ex. A, 6 and 9(c). Plaintiffs also paid Defendant a security deposit of one months

rentor $3,600and an additional $500 for a pet deposit. The total deposit paid by Plaintiffs to

Defendant is $4,100 (referred to hereinafter as the Security Deposit). See CC 9; FACC 12,

Ex. A, 9(A); SACC 12. The Lease states that the Security Deposit is intended to pay the cost

of damages, cleaning, excessive wear and tear, and unreturned keys once the Lease Agreement has

ended and/or for any unpaid charges due by reason of Tenants default of this Lease Agreement.

See, CC 16; FACC 22, Ex. A 9(B); SACC 23; and RJN, Ex. A, 9(B).

In September 2013, Plaintiffs notified Defendant that they were under contract to purchase

a new home and would terminate their lease on October 31, 2013, per the Lease terms. CC 10;

166 Cal.App.3d 452, 458-459. In any event, Plaintiffs attach true and correct copies of the documents Defendant previously attached to its cross-complaints to the Plaintiffs Request for Judicial Notice Supporting Demurrer to Second Amended Cross Complaint (RJN). 3 It should be noted that Defendant eliminated from this version of his cross-complaint the allegation that the agreed rental period was for three months. This obvious effort to hide a critical fact fails, however, because Defendant already admitted that the lease was for a period of three months in each of the first two versions of the Cross-Complaints, as verified by the Lease Agreement he attached to each of those, but left off the SACC. As stated above, for the convenience of the Court, the Lease Agreement is attached to the RJN filed concurrently with this brief.



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FACC 16; and SACC 16.4 Acknowledging the termination notice, on September 30, 2013,

Defendant wrote Plaintiffs an email inquiring whether Plaintiffs were willing to vacate the Leased

Premises early so Defendant could find a new tenant. See CC 11 and 14; FACC 17 and 20;

and SACC 17 and 21.5 Plaintiffs did indeed vacate the premises early. See CC 15, 16;

FACC 22; and SACC 23.6

Under the terms of the Lease, Defendant had 10 days from October 26, 2013or

November 5to return Plaintiffs Security Deposit. CC, FACC, and RJN, Ex. A, 9(B). Instead,

sometime later, Defendant provided a Security Deposit Refund Form alleging that Plaintiffs

damaged the Leased Property in the amount of $899, and that Defendant owed Plaintiffs only

$3,201 of their security deposit. CC, Ex. B; FACC, Ex B; and RJN, Ex. B. Defendant, however,

did not return Plaintiffs any portion of the security deposit, and has still not paid them any portion

of the security deposit. See, CC 19, 20, 25; FACC 27, 28, 50; SACC 28-30, 51; and

Defendants Answer to Plaintiffs Complaint, 32. Instead, five days laterNovember 21,

2013Defendant sent Plaintiffs two documents: (a) Security Deposit Refund Form (SDRF)

purporting to list $899 in deductions from the Deposit, and (b) a General Release and Settlement

Agreement (Release). See, Plaintiffs Complaint, 30and Defendants Answer to Plaintiffs

Complaint 30.

4 Note, the paragraph numbering in Defendants SACC contains an error where after paragraph 24 on page 5, the number starts over again at paragraph 16. This cite refers to the second paragraph 16 , which appears on page 5. 5 This cite refers to the second paragraphs 17 and 21, which appears on page 6. 6 This cite refers to the second paragraph 23, which appears on page 6.



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On January 31, 2014, Plaintiffs filed a Complaint alleging claims for breach of contract for

Defendants failure to return any portion of the security deposit, breach of contract for

Defendants failure to honor the separate rent-rebate agreement, fraud, conversion, and for

violations of Civil Code section 1950(b) addressing a landlords responsibilities to a tenant with

regard to the security deposit and agreement. On March 17, 2014, Defendant Answered and filed

his Cross Complaint. Plaintiffs demurrer was sustained against Defendants initial Cross-

Complaint on August 4, 2014, based on Defendants failure to oppose it. On August 14, 2104,

Defendant filed the First Amended Cross-Complaint, and this Court sustained a demurrer, with

prejudice, against the claims for breach of contract, contributory negligence, and intentional

infliction of emotional distress, and allowing Defendant to amend and replead his claim for Fraud

and Deceit. In response, Defendant filed the SACC which attempts to amend and replead all

counts from the FACC.

III. LEGAL STANDARD

A complaint must allege facts sufficient to establish every element of each cause of

action. (Consumer Cause, Inc. v. Arkopharma, Inc. (2003) 106 Cal.App.4th 824, 827.) A

demurrer may be made to the sufficiency of the complaint based on any ground appearing on its

face or from any matter judicially noticed. See Cal. Code Civ. Proc. 430.30(a). When the cause

of action is defective, the plaintiff bears the burden of showing how it can be cured by

amendment. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040-1041; Goodman v.

Kennedy (1976) 18 Cal.3d 335, 349.) If the Defendant/Cross-Complainant in the present matter

does not do so, or if it is clear that the defect cannot be cured, the demurrer is properly sustained

without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; City of Pomona v. Superior

Court (2001) 89 Cal.App.4th 793, 800.) A trial court does not abuse its discretion by sustaining a 5

MEMORANDUM OF POINTS AND AUTHORITIES ISO DEMURRER TO 2ND AM. CROSS COMPLAINT CASE NO. CIVMSC 14-00208

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general demurrer without leave to amend if it appears from the complaint that under applicable

substantive law there is no reasonable possibility that an amendment could cure the complaints

defect (Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135,

1144; Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486; Dalton v. East Bay Mun.

Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-1571).

IV. ARGUMENT

A. Defendants Claims for Breach of Contract, Contributory Negligence and Intentional Infliction of Emotional Distress Were Dismissed

Without Leave to Amend, and Thus Improperly Plead Here On March 4, 2105, this Court issued a tentative ruling sustaining Plaintiffs previous

demurrerwithout leave to amendDefendants claims for breach of contract, contributory

negligence and intentional infliction of emotional distress. Nonetheless, Defendant repleads each

claim in his SACC. Because Defendant was not granted leave to amend or replead any of these

causes of action, they are, once again, subject to demurrer and must be dismissed. Plaintiff will

give Defendant, an in pro per litigant, the benefit of the doubt and not seek sanctions for his

failure to comply with the obvious language of the court order.

B. Defendants Cause Of Action, For Fraud And Deceit, Is Uncertain Because It Lacks The Required Specificity Plaintiffs demurrer was also sustained as to Defendants cause of action for Fraud and

Deceit, however Defendant was granted leave to amend. Specifically, this Court found

Defendant failed to allege facts, with the requisite specificity, demonstrating the elements of

intent to defraud, justifiable reliance and resulting damages. Defendants amended cause of action

fails for the same reasons.



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Fraud must be specifically pleaded. The effect of this rule is twofold: (a) General pleading

of the legal conclusion of fraud is insufficient and the facts constituting the fraud must be

alleged; (b) Every element of the cause of action for fraud must be alleged in the proper manner

(i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not

ordinarily be invoked to sustain a pleading defective in any material respect. (Committee on

Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, superseded on

other grounds, (citing, 3 Witkin, Cal. Proc. (2d. ed. 1971) Pleading, 574; see Hall v. Department

of Adoptions (1975) 47 Cal.App.3d 898, 904; Roberts v. Ball, Hunt, Hart, Brown & Baerwitz

(1976) 57 Cal.App.3d 104, 109; Lavine v. Jessup (1958) 161 Cal.App.2d 59, 69.) Thus, a party

alleging fraud must state what was said, by whom, in what manner (i.e., oral or in writing) and

when. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Defendants fraud claim again lacks the required specificity on most, if not all, of these

grounds. For example, Defendant alleges that [Plaintiffs] represented to [Defendant] that an

extended lease was needed because it was required to enroll their children in the local school

district . CC, 97; FACC 14; SACC 13. Defendant alleges, for the first time in any pleading or

document related to this matter in the over 12 months since its filing, that Plaintiffs supposedly

negotiated a lower rent price based on the premise that the three-month lease that was offered and

signed would might become a longer lease later. Even if this were true, which Plaintiffs will

contest, at most it represents a possibility of a longer lease, not a promise. Indeed, if Defendant

wanted to secure a longer lease term, he had every opportunity to draft the lease for a longer term.

7 Note, Defendants CC has a numbering error where paragraph number 8 and 9 are repeated twice. This cite refers to the second paragraph 9 at lines 15-18 on page 3.



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Interestingly, Defendant eliminated from this latest iteration of his claim all allegations stating that

the Lease he drafted and offered to Plaintiffs was for three months, but Defendant cannot bury

such a prominent and admitted facts so easily. See CC 9, Ex. A, 4 and 13; FACC 13, Ex. A,

4 and 13; RJN, Ex. A.

In any event, Defendants allegation lacks the required specificity because it fails to state

(a) that a promise was actually made (needed is not a promise, nor is the discussion of the

possibility of longer lease), (b) whether the alleged promises were oral or written, and (c) when the

promise was allegedly made. Indeed, as to the question of when, Defendant cannot make up his

mind whether the alleged promise took place prior to or subsequent to signing the Lease

Agreement. Compare FACC 13 (prior) to CC 8 (subsequent) to SACC 13 (which at

signing of the lease).

Because the claim fails to meet the pleading standard, the demurrer should be sustained.

C. Defendants Cause Of Action, For Fraud And Deceit, Also Fails to State Facts Sufficient to State A Claim In addition to failing to meet the required specificity standard, Defendant fails to plead the

required elements for a fraud claim. To be an actionable deceit, a misrepresentation must be made

with intent to induce another to alter his or her position to that persons injury or risk. (Civ. Code

1709; Vandervort v. Farmers & Merchants Nat'l Bank (1936) 7 Cal.2d 28, 30-31.) Assuming

for the sake of this brief that Plaintiffs did communicate a desire or an intention to later consider a

lease extension, Defendant fails to meet almost every requirement of this standard.

First, there is no allegation that Plaintiffs made a misrepresentation. Defendant does not,

nor could he, allege Plaintiffs desire or intent to live in the areawhether by extending the lease

or buying a homewas a misrepresentation. Defendant does not even allege that the Plaintiffs



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agreed to extend the lease, because Plaintiffs did not do so. In fact, any such alleged promise is

expressly contradicted by the parties written agreement that the Lease was for a three month

period from August 1st 2013 to October 31st 2013 with an option to renew on a month to month

basis. See CC 9, Ex. A, 4 and 13; FACC 13, Ex. A, 4 and 13; RJN, Ex. A. Indeed,

Defendant admits that Plaintiffs informed him in Septemberone month prior to the expiration of

the three-month Lease Agreementthat they would not renew the Lease Agreement. CC 10;

FACC 16; and SACC 16.8 This allegation is in direct conflict with Defendants claim that

Plaintiffs somehow deceived him, and the admission provides a clear affirmative defense to the

claim. (Halvorsen, (1998) 65 Cal.App.4th at 1391) (when a complaint affirmatively alleges facts

amounting to an affirmative defense, it is subject to a demurrer.)) Defendant attempts to repair

this allegation with a new one stating, essentially that, once Defendant learned of the lease

termination, he sought Plaintiffs agreement to vacate the premises early so he could find a new

tenant sooner. See, SACC 17.9 He then claims Plaintiffs did not respond to that email, and that

he understood the lack of response as a revocation of the lease termination notice. Even if true,

any failure to respond to Defendants request for an earlier termination date meantat mostthat

the termination date remained at October 31 and not earlier. The only representation made by

Plaintiffs was that they were electing to terminate the lease, and they did so according to the terms

of the lease as drafted by Defendant himself.

Second, even if a misrepresentation could be read into Defendants claim, Defendant fails

to plead Plaintiffs intended to induce Defendants reliance. A stated before, Defendant admits that

8 This cite refers to the second paragraph 16, which appears on page 5. 9 This cite refers to the second paragraph 17, which appears on page 6.



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Plaintiffs gave him over a months notice of their intent to not to renew the lease. If anything, that

admissionby Defendant himselfdemonstrates an intent to ensure that Defendant had ample

time to find a new tenant, not an intention to somehow prevent him from doing so. Again,

Defendant affirmatively alleges a fact amounting to an affirmative defense to the claim, thus

subjecting it to demurrer. (Halvorsen, (1998) 65 Cal.App.4th at 1391.)

Finally, damage is a necessary element for fraud, (see Civ. Code, 1709), and Defendant

remains unable to plead any damage. There was no agreement to extend the Lease past the

original October 31 termination date. Plaintiffs Lease Agreement terminated under its own terms.

CC 8, Ex. A; FACC 13, Ex. A; RJN Ex. A. Plaintiffs already paid Defendant the full last

months rent in advance. CC 9; FACC 12; SACC 12. Defendant had over a month to market

for a new tenant, which is about the same, or more than he would have had even had Plaintiffs

agreed to continue forward on a month-to-month tenancy as he claims to have relied. CC 9;

FACC 13; RJN Ex. A. Indeed, Defendant alleges that he was able to rent the apartment.10

In short, Defendant cannot plead facts showing a misrepresentation, cannot plead facts

showing intent, and cannot plead damages as a result of an alleged misrepresentation. For these

reasons, Plaintiffs demurrer to the fraud and deceit claim must be sustained with prejudice.

10 The fact that the Defendant charged the next tenant lower rent than Plaintiffs does not establish damage. If anything, it only tends to show that Defendant was likely overcharging Plaintiffswho relocated due to work from across the country and were looking for temporary housing.



CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA

DEPARTMENT: 21 HEARING DATE: 03/05/15

11. TIME: 9:00 CASE#: MSC14-00208 CASE NAME: KEITH PEARCE vs. RAVINDRA REDDY HEARING ON DEMURRER TO 1st Amended CROSS-COMPLAINT of REDDY FILED BY JONI PEARCE, KEITH PEARCE * TENTATIVE RULING: * Plaintiffs/Cross-Defendants Keith and Joni Pearces demurrer to the First Amended Cross-Complaint is sustained. As to the 1st Cause of Action for Breach of Contract, the demurrer is sustained without leave to amend on the ground Defendant/Cross-Complainant Ravindra Reddy has failed to allege facts sufficient to constitute a cause of action. The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom. [Citation.] Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178. Defendant Reddy has not alleged facts showing Plaintiffs/Cross-Defendants failure to perform under the Lease Agreement as Defendant has not clearly identified which term or terms Plaintiffs/Cross-Defendants allegedly breached. Moreover, Defendant Reddy has not alleged facts demonstrating he suffered damages as result of any alleged breach by Plaintiffs. Defendant Reddys Opposition failed to address how an amendment could cure defects to this cause of action. As to the 2nd Cause of Action for Contributory Negligence, the demurrer is sustained without leave to amend. The demurrer is sustained on the ground Defendant Reddy has not alleged facts sufficient to constitute a cause of action. Contributory negligence is not a recognized tort in California. As to the 3rd Cause of Action for Fraud and Deceit, the demurrer is sustained with leave to amend. The demurrer is sustained on the ground Defendant Reddy has not alleged facts sufficient to state a cause of action. "The elements of fraud, which give rise to the tort action for deceit are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.

- 8 -



Fraud must be pled with particularity. Every element must be pled factually and specifically. "It is essential that the facts and circumstances which constitute the fraud should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud." Scafidi v. Western Loan & Bldg. Co. (1946) 72 C.A.2d 550, 553. Defendant Reddy has not alleged facts, with the requisite specificity, demonstrating the elements of intent to defraud, justifiable reliance and resulting damages. As to the 4th Cause of Action for Infliction of Emotional Distress, the demurrer is sustained without leave to amend. The demurrer is sustained on the ground Defendant Reddy has not alleged facts sufficient to constitute a cause of action. The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. . . . Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Citation) The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903. Defendant Reddy has failed to allege facts showing extreme and outrageous conduct. Furthermore, Defendant has not alleged facts demonstrating he suffered severe mental distress as a result of Plaintiffs conduct. Nor has Defendant suggested anyway that he could cure the defects by amendment. Request for Judicial Notice Pursuant to Evidence Code 452 and 453, Plaintiffs/Cross-Defendants request the court to take judicial notice of the following:

1. The September 30, 2013 email from Defendant to Plaintiffs, which is referenced in the

FACC at 16-20.

2. Plaintiffs Complaint in this action

3. Defendants Reddys Answer to the Complaint

Plaintiffs/Cross-Defendants request for judicial notice is granted in part. As to the Complaint and Answer, the court may properly take judicial notice of the records of any court of record of any state of the United States. (Evid. Code, 452(d)). The court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments." Day v. Sharp (1975) 50 Cal.App.3d 904, 914. As to the September 30, 2013 email referenced in the First Amended Cross-Complaint, the court declines to take judicial notice. Pursuant Evidence Code 452(h), the email is reasonably

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subject to dispute and is incapable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Defendant has 20 days to file an amended cross-complaint. The Court sets a CMC for June 12, 2015 at 8:30 a.m.

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Demurrer to SACCMEMORANDUMIn June 2013, Plaintiffs moved to California and sought a furnished rental property for temporary lease while looking for a house to buy. See CC 7; FACC 8, 9; and SACC 8, 9. On June 26, 2013, Plaintiffs entered into a Residential Lease Agree...The Leased Property was to be occupied by Plaintiffs Keith and Joni Pearce, their children Alden and Nathan, as well as one cat and one dog. See, CC 8, Ex. A, 5; FACC 11, Ex. A, 5; SACC 11, RJN, Ex. A, 5.The rent, $3,600 per month, was d...In September 2013, Plaintiffs notified Defendant that they were under contract to purchase a new home and would terminate their lease on October 31, 2013, per the Lease terms. CC 10; FACC 16; and SACC 16.3F Acknowledging the termination notic...Under the terms of the Lease, Defendant had 10 days from October 26, 2013or November 5to return Plaintiffs Security Deposit. CC, FACC, and RJN, Ex. A, 9(B). Instead, sometime later, Defendant provided a Security Deposit Refund Form alleging th...On January 31, 2014, Plaintiffs filed a Complaint alleging claims for breach of contract for Defendants failure to return any portion of the security deposit, breach of contract for Defendants failure to honor the separate rent-rebate agreement, fr...Dated: April 3, 2015

Demurrer to SACC - with ExhibitDemurrer to SACCATentative Order 030415_Redacted

demurrer to sacc - with exhibit (1) (1)

Documents

cross complaint case

defendants claims

joni pearce superior

authorities iso demurrer

amended cross complaint

marshall state bar

robbi reddy

ravindra reddy