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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 PLAINTIFFS 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.

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Yet that is precisely what has happened here.

II. FACTUAL & LEGAL BACKGROUND On November 5, 2009, Plaintiff Jennifer L. Alter (PLAINTIFF) brought this lawsuit against Defendants Emily Neto Benes (DEFENDANT BENES) and the California Department of Motor Vehicles (as Nominal Defendant). A First Amended Complaint was filed on February 1, 2010. This Complaint was served on DEFENDANT BENES on April 20, 2010. PLAINTIFFS Counsel granted DEFENDANT BENES an extension on the time in which to file a response by telephone and e-mail. The Complaint alleges two Causes of Action: Conversion and Fraud.

III. THE DEMURRER SHOULD BE SUSTAINED BECAUSE THE FIRST CAUSE OF ACTION FOR CONVERSION FAILS TO STATE FACTS SUFFICIENT TO SUPPORT A CAUSE OF ACTION. RATHER THAN ALLEGING FACTS PLAINTIFF RELIES ON MERE CONCLUSORY ALLEGATIONS OF LAW. A Complaint must allege sufficient facts to support the elements of a cause of action. It cannot support that cause of action by substituting mere conclusory allegations of law rather than allegations of facts. Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal. App. 3d 1180, 1190-1191, 255 Cal. Rptr. 434; Going v. Dinwiddie (1890) 86 Cal. 633, 638, 25 P. 129; Miles v. McDermott (1866) 31 Cal. 271, 273; Triscony v. Orr (1875) 49 Cal. 612, 617. The Complaint in this case tries to substitute conclusory allegations of law rather facts in alleging the First Cause of Action for Conversion. This is obvious from the first paragraph of the conversion cause of action:

1. On or about February 17, 2008, Defendant, BENES (hereinafter referenced as BENES) through fraud, deceit, forgery or some other fraudulent means was able to

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change, alter, 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 ALTERS possession and convert the same to BENES own use.

Now if someone can determine from that paragraph what PLAINTIFF actually contends happened, as opposed to the mere allegation of a legal conclusion, i.e. that DEFENDANT BENES converted PLAINTIFFS property, they are a linguistic wizard. The Complaint alleges that DEFENDANT BENES and the PLAINTIFF shared a house. It is hard to imagine that PLAINTIFF doesnt know whether the title to her car was allegedly obtained by fraud or deceit (e.g. she was deceived into giving it over to DEFENDANT BENES) or by an alleged forgery by DEFENDANT BENES. Unless PLAINTIFF is alleging mental lapses, she would know if she gave the title to DEFENDANT BENES. What is clearly going on here is that PLAINTIFF wants to have her cake and eat it too. She doesnt want to commit to any one version of the facts. Yet she must allege some basic facts in the complaint (e.g. she deceived me by some means or she forged the document), not merely legal conclusions (She converted my property by some fraudulent means.) Id. For this reason, the demurrer should be sustained as to the First Cause of Action for Conversion. IV. 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. A. 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

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matter of which the court is required to or may take judicial notice (Code Civ. Proc. 430.10(e)). B. Statement of Facts. A complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language (Code Civ. Proc. 425.10(a)). C. Specific and Factual Allegations in Pleading Fraud. It is fundamental that fraud is not presumed. Whenever it constitutes an element of a cause of action or is invoked as conferring a right, it must be alleged ( Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636, 75 Cal. Rptr. 766, 451 P.2d 406 ; Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782-783, 31 Cal. Rptr. 2d 162 ). In pleading fraud, it is essential that the facts and circumstances constituting the fraud should be set out clearly, 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, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud ( Hannon v. Madden (1931) 214 Cal. 251, 267-268, 5 P.2d 4 ; Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal. App. 2d 550, 553, 165 P.2d 260 ). D. The Complaint Fails to Meet these Requirements The Complaints 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. Then it alleges Said acts were based on fraud, forgery, and/or Intentional Deceit. This is a textbook example of a legal conclusion substituting for allegations of fact, and of a failure to plead fraud with specificity. Since the above citations make it clear that PLAINTIFF cannot get away with such sloppy, vague, and bluntly slippery pleading (i.e. a desire to change her pleading once she hears DEFENDANT BENES version of the facts), the demurrer should be sustained. PLAINTIFF must be forced to allege what she actually thinks happened, as opposed to pleading in vague legal conclusions where the facts can later be modified depending on what she thinks will benefit her most.

V. PLAINTIFF HAS FAILED TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION FOR FRAUD AND DECEIT BECAUSE PLAINTIFF

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ATTEMPTS TO ALLEGE FRAUD IN GENERAL TERMS AND TERMS THAT ARE MERE CONCLUSIONS OF LAW. A. Pleading Conclusions of Law Insufficient. It is not sufficient to allege fraud in general terms or in terms that are mere conclusions. Every element of a cause of action for fraud must be alleged factually and specifically ( Lesperance v. North Am. Aviation, Inc. (1963) 217 Cal. App. 2d 336, 344, 31 Cal. Rptr. 873 ). As noted above, this wasnt done here. Therefore, the demurrer should be sustained.

VI. 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. A. Deceit Defined. 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. Code 1710(1), (2)). B. Deceit Must Be Pleaded. A claimed fraudulent representation must be pleaded to be relied on in a pleading based on fraud ( Mayer v. Mayer (1929) 207 Cal. 685, 694, 279 P. 783). C. Misrepresentation of Material Fact Required. A complaint setting forth fraud must show that the defendant made a false representation of a material fact ( Hill v. Wrather (1958) 158 Cal. App. 2d 818, 823-824, 323 P.2d 567 ). D. Test of Materiality. 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. Wyckoff (1957) 152 Cal. App. 2d 684, 689, 313 P.2d 592 ; Handley v. Handley (1960) 179 Cal. App. 2d 742, 746, 3 Cal. Rptr. 910 ). E. 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

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changing title to DEFENDANT BENES. They simply allege the existence of some vague fraud, forgery and/or Intentional Deceit without any clarity as to what that allegedly was. This does not meet the pleading requirements set forth above for fraud. Therefore, the demurrer should be sustained for these reasons as well.

VII. CONCLUSION For all of the above reasons, 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. Thus, the Demurrer should be sustained.

LAW OFFICES OF KENNETH ZWICK

Date: July 16, 2010

By: ______________________________ Kenneth Zwick Attorney for Defendant Emily Neto Benes

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