Response Reply

Cal. Super. - 6th Dist.November 28, 2017

Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/5/2019 10:46 AM Reviewed By: H. Keniston Case #17CV319631 Envelope: 2586541 17CV319631 Santa Clara - Civil H. Keniston Ab.) NON 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consummated prior to official ceremonies. These are not outrageous discussions prior to a marriage in a civilized society. There are differing social and cultural expectations surrounding all of those topics and they should indeed be discussed prior to marriage in a civilized society. For example, if a man wishes to keep working afier marriage, he should express it so that he and his wife who out earns him but not enough to pay for childcare can make appropriate decisions such as moving closer to family who can help with childcare. This is not an outrageous discussion prior to a marriage in a civilized society. Neither is the allegation (taken as true for the purpose of this demurrer) that Plaintiff/Cross-Defendant intended a filture wife to be a homemaker. That is why these kind of discussions are often encouraged either by religious counseling or pre-marital counseling prior to marriage. Similarly with speaking to persons of the opposing sex without the spouse present. This is something that is cultural and should be discussed prior to marriage. There was a recent public example that Vice-president Michael Pence follows this practice. The third allegation about having sex prior to marriage and when to have sex during marriage is again something that all parties to a marriage should discuss prior to marriage in a civilized society. Again, there are multiple cultural variations and it is one of the most important discussions in a civilized society prior to marriage. Defendant/Cross-Complainant has not alleged rape, which would be outrageous in a civilized society. However, the alleged discussions prior to marriage on when to consummate the marriage and the frequency of sex during the marriage are expected prior to marriage and should be encouraged in a civilized society. Defendant/Cross-Complainant writes: “Cross-Defendants seem to think that Swetha having to give up her freedom to work, freedom to have friends and her choice about when sexual relations occur are just mere insults.” However, Swetha did not have to give up anything, because it is also alleged Swetha continued working and continued to have whichever friends she wanted and continued to chose when sexual relations occur because she did not get married. (Cross-Complaint, 1] 11 and 13.) Swetha fails to allege facts regarding the intention or reckless disregard of causing emotional distress. Swetha has failed to allege (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 cross- complainant's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the cross-defendant’s outrageous conduct. Potter v. Firestone Tire & Rubber Case Number: l7-CV-3 19631 -2- PLAINTIFF DHIRAJ SURI’S REPLY TO OPPOSITION TO DEMURRER TO CROSS-CONIPLAINT \OOO'QON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Co. (1993) 6 Cal.4th 965, 1001. To be outrageous, the conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. For purposes of intentional infliction of emotional distress, “severe emotional distress” means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. Id. Thus, the demurrer to Cross-complainant’s First Cause of Action should be sustained. B. Demurrer to the Second Cause of Action for Fraud Cross-Complainant seems to be stating in her Opposition that she had certain expectations about “America” and superimposed those expectations into her possible fi1ture marriage without inquiring on the views of whom she would specifically be married. Cross-complaint 1119. As stated, the alleged conversation should be encouraged prior to marriage and finding out what a potential marriage party expects is a positive thing and it allows parties to not go forward with a marriage. It is not fraud. There are married people in “America” who don’t work. There are married people in “America” who don’t speak to people of the opposing sex while alone. There are married people in “America” who agreed to have sexual relations prior to marriage or with a certain frequency during marriage. It is not fraud to find out prior to marriage whether an individual you were intending to marry does not fall within your expectations of what people in “America” do because “America” is a culturally and religious diverse country in which people marry individuals. These facts do not support an allegation of fraud. Fraud must be pleaded specifically; general and conclusory allegations do not suffice. This panicularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. Here, Cross-Complainant has not pled with particularity any false representations by Cross-Defendant. Cross-Complainant has not pled with particularity an intent to deceive or induce reliance and has not pled any actual reliance or how that reliance resulted in damages. Cross-Complainant’s lack of asking or mismatch about alleged expectations or discussions about such expectations before her family allegedly paying for an engagement party does not show a knowingly false representation by Cross-Defendant or make any reliance justifiable. Thus, the demurrer to Cross- complainant’s Second Cause of Action should be sustained. C. Demurrer to the Third Cause of Action for Conversion Case Number: l7-CV-3 19631 -3- PLAINTIFF DHIRAJ SURI’S REPLY TO OPPOSITION TO DEMURRER TO CROSS-COMPLAINT MAWN \OOOQO 10 ll 12 l3 14 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 Even with the amended language, Cross-Complainant still fails to allege any specific acts by which she claims Cross-Defendant interfered with her property rights, but instead just generally asserts that she was the owner of certain items and that there was conversion. She does not specify any means by which the conversion occurred, just keeps repeating the word “conversion” without alleging facts stating what happened. This is conclusory and not enough to survive a demurrer. Cross-Complainant is still not stating how the property was interfered with, that she did not consent, or how that caused her harm. Thus, the demurrer to Cross-complainant’s Third Cause of Action should be sustained. D. Demurrer to the Fourth Cause of Action for Breach of Contract The Demurrer does not feign confilsion. The alleged facts are not clear and do not establish the elements of the contract and use tentative words such as “may”, and thus are demurrable. There was no such contract, as reflected by the Court Order: Request for Judicial Notice and Ex. A. The parties only communicated during a settlement conference via the settlement conference officer, resulting in the above order. CCP Section 664.6 requires a “a writing signed by the parties outside the presence of the court or orally before the court.” Thus, CCP Section 664.6 does not apply. Any settlement negotiations in a settlement conference not entered on the record are confidential and should not be disclosed, and they certainly do not constitute a verbal contract. The Cross-Complaint does not allege how two represented parties managed to formulate and offer and acceptance that was not merely a settlement negotiation while communicating via a judicial officer, and somehow the judicial officer and both attorneys failed to put it on the record. The Cross-Complaint also fails to allege facts about what the offer was, what the acceptance was and what the consideration was. Who proposed these terms? Who accepted them? What jewelry are they referring to? What claims are to be dropped? This is because there are no clear facts sufficient to allege either the existence or a breach of contract. “In order for acceptance of a proposal to result in the formation of a contract, the proposal ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.’]” (Weddington Productions, Inc. v. Flick (1998) 6O Cal.App.4th 793, 81 1.) “Whether a contract is sufficiently definite to be enforceable is a question of law for the court.” (Ladas v. California State Automobile Assn. (1993) 19 Cal.App.4th 761, 770, fn. 2.) Where are Dhiraj’s or Swetha’s alleged written or spoken words showing the formation of the Case Number: 17-CV-3 19631 -4- PLAINTIFF DHIRAJ SURI’S REPLY TO OPPOSITION TO DEMURRER T0 CROSS-COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contract? “Contract formation is governed by objective manifestations, not subjective intent of any individual involved. The test is ‘what the outward manifestations of consent would lead a reasonable person to believe.’” (Roth v. Malson (1998) 67 Cal.App.4th 552, 557, internal citations omitted.) “The manifestation of assent to a contractual provision may be ‘wholly or partly by written or spoken words or by other acts or by failure to act.” (Merced County Sherifl’s Employees’ Assn. v. County ofMerced (1987) 188 Ca1.App.3d 662, 670 (quoting Rest. 2d Contracts, § 19).) “If words are spoken under circumstances where it is obvious that neither party would be entitled to believe that the other intended a contract to result, there is no contract.” (Fowler v. Security-Filtst National Bank (1956) 146 Cal.App.2d 37, 47.) “These expectations may be inferred from the conduct of the parties and surrounding circumstances.” (California Food Service Corp, Inc. v. Great American Insurance Co. (1982) 130 Cal.App.3d 892, 897.) The fact is that the Order signed by the Honorable Cynthia C. Lie does not reflect any such contract. The order was only as to the status as single persons of the parties and that they are not prohibited from future marriage, as well as the absence of physical and mental violence from Dhiraj to Swetha. Request for Judicial Notice Ex A. In testing a complaint against a demurrer, the court may disregard allegations that are inconsistent with attached exhibits and matters judicially noticed. Del E. Webb Corp. v. Structural Materials Ca, (1981) 123 Cal.App.3d 593, 604. Further, Swetha claims that “Cross-Complainant stood ready t0 honor the agreement to move on with the exchange of family gifis.” However, she did not tender any family gifis or alleged to have tendered them. “It is elementary a plaintiff suing for breach of contract must prove it has performed all conditions on its part or that it was excused from performance.” (Consolidated World Investments, Ina, v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380.) In short, the breach of a contract claim is uncertain and not alleged sufficiently. Thus, the demurrer to Cross-complainant’s Fourth Cause of Action should be sustained. III. CONCLUSION For the reasons stated herein, Plaintiff respectfully requests that the court SUSTAIN his Demurrers to Defendant Swetha Chunduri’s Cross-Complaint without leave to amend. Dated: March 5, 2019 Respectfillly submitted,WEN 01M Deborah L Azar case Number 17'CV'319631 '5' Th9 I mxl nmnpg nf Dehnrah §A7m‘ P r‘ PLAINTIFF DHIRAJ SURI S REPLY TO OPPOSITION TO DEMURRER TO CROSS-COMPLAINT