Demurrer To Complaint Atty Ramos 4232019 9am D19

Response

Cal. Super. - 6th Dist.September 13, 2018

OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m 0 NN O N nn RA W N R O O N N N B R A W N Oo Electronically Filed WRIGHT, FINLAY & ZAK, LLP y Gwen H. Ribar, Esq., SBN 188024 oy 8 nty of § Sount ke i James J. Ramos, Esq., SBN 252916 on 12/19/2018 11:50 AM 4665 MacArthur Court, Suite 200 Reviewed By: Yuet Lai Newport Beach, CA 92660 Case #18CV334389 Tel: (949) 477-5050; Fax: (949) 608-9142 Envelope: 2293379 Attorneys for Defendant, JP MORGAN CHASE BANK N.A. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA - OLD COURTHOUSE ALAN N. SLATER, Case No.: 18CV334389 Plaintiff, NOTICE OF DEMURRER AND VS. DEMURRER OF DEFENDANT JP MORGAN CHASE BANK N.A. TO JPMORGAN CHASE BANK; and PLAINTIFF’S COMPLAINT; DOES 1 - 10, MEMORANDUM OF POINTS AND AUTHORITIES IN Defendants. SUPPORT THEREOF Date: April 23, 2019 Time: 9:00 a.m. Dept.: 19 [Filed concurrently with Declaration; and Request for Judicial Notice] PLEASE TAKE NOTICE that on April 23, 2019 at 9:00 a.m. in Department 19 of the above-captioned Court, located at 161 North First Street, San Jose, California, 95113, Defendant JP MORGAN CHASE BANK N.A. (“CHASE”) will demur to each and every cause of action in the Complaint of ALAN N. SLATER (“Plaintiff”) on the grounds set forth in the accompanying Demurrer. 1 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF - The Demurrer is made pursuant to California Code of Civil Procedure, §§430.10(e) and (f) on the basis that Plaintiff’s Complaint fails to state facts sufficient to support any of the causes of action alleged against Defendant and is fatally uncertain. This Demurrer is based on this Notice of Hearing on Demurrer, the accompanying Demurrer and Memorandum of Points and Authorities, the pleadings, papers and records on file in this action, and upon such further oral and/or documentary evidence as may be OO 0 9 O N Wn B W NN ND N N N N N ND N D E Em Em m e e m e m e m e m 0 NN O N nn RA W N R O O N N N B R A W N Oo presented at the hearing on this matter. Dated: December 19, 2018 By: 2 Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP s/ James J. Ramos, Esq. James J. Ramos, Esq. Attorneys for Defendant, JP MORGAN CHASE BANK N.A. NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m 0 NN O N nn RA W N R O O N N N B R A W N Oo DEMURRER Defendant generally and specially demurs to Plaintiff’s Complaint and to each of the below enumerated causes of action contained therein, on the following grounds: The Entire Complaint Plaintiff’s Complaint, and each individual Cause of Action alleged therein, fails to allege facts upon which relief may be granted in that it is barred by res judicata and because the underlying theory of liability is without merit. Additionally, Plaintiff has failed to name an indispensable party. Finally, the Complaint is fatally uncertain. The First Cause of Action Plaintiff’s First Cause of Action for Breach of Contract fails to allege facts upon which relief may be granted in that there are no facts to suggest a valid contract between the parties, Plaintiff failed to perform his own obligations under the subject contract, and has not suffered any harm. Additionally, Plaintiff fails to allege this claim with the required degree of specificity. The Second Cause of Action Plaintiff’s Second Cause of Action for Fraud fails to allege facts upon which relief may be granted in that Defendant did not make any misrepresentations. Additionally, Plaintiff fails to allege this claim with the required degree of specificity. Finally, this claim fails for all of the same reasons as do Plaintiff’s other Causes of Action. 1 1 1 1" 1 1" 1 1 1 3 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m 0 NN O N nn RA W N R O O N N N B R A W N Oo The Third Cause of Action Plaintiff’s Third Cause of Action for “RICO” lacks facts upon which relief may be granted in that Plaintiff’s mere conclusions of law are not sufficient and because he has failed to allege any facts to suggest an enterprise among the defendants or a pattern/practice of offending conduct. Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP Dated: December 19, 2018 By: s/James J. Ramos, Esq. James J. Ramos, Esq. Attorneys for Defendant, JP MORGAN CHASE BANK N.A. 4 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The instant case marks the second time Plaintiff has filed suit against his lender alleging that it owed a duty to accept what is - on its face - a worthless check for over $1M. The first case resulted in judgment being entered against Plaintiff because the prior Court recognized Plaintiff’s story for what it is: a scam. This case is no different and should, therefore, be dismissed forthwith. Notwithstanding the above, each and every one of Plaintiff’s individual Causes of Action lacks facts upon which relief may be granted. As such, each claim should be dismissed. And, since Plaintiff has already enjoyed his bite at the proverbial litigation apple, leave to amend should be denied. II. STATEMENT OF FACTS On or about March 30, 2007, Plaintiff and non-party Shirley A. Slater (“Co- Borrower”) obtained a loan in the amount of $1,110,000.00 (the “Loan”) from Washington Mutual Bank, FA, the repayment of which was secured by a Deed of Trust recorded against certain real property located at 2197 Wynfair Ridge Way, San Jose, CA (the “Property”).' Co-Borrower holds joint title to the Property by virtue of a Grant Deed recorded against the Property.” The Loan was eventually assigned to U.S. Bank National Association, as Trustee, Successor in Interest to Bank of America, National Association as Trustee as Successor by Merger to LaSalle Bank, National Association as Trustee for WAMU Mortgage Pass- Through Certificates Series 2007-HY6 Trust (“the Trust”)? for whom Defendant JP Morgan Chase Bank N.A. (“Chase” or “Defendant”) is the current servicer. On or about April 6, 2017, Plaintiff filed suit in the County of Santa Clara (Case No. 17CV308241 (“Prior Action”) against, inter alia, Chase’s predecessor-in-interest (and the prior loan servicer), Select Portfolio Servicing, Inc. (“SPS”). The Prior Action was ' See Deed of Trust, attached to Request for Judicial Notice filed concurrently herein (“RIN”) as Exhibit “A”. % See Grant Deed, attached to RIN as Exhibit “B.” 5 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O eventually dismissed with prejudice as to SPS and Judgment was eventually entered against Plaintiff and in favor of SPS." Undeterred by the judgment issued against him in the Prior Action, Plaintiff filed the instant case against the Chase, whom took over the servicing of the Loan for SPS. In his latest Complaint, Plaintiff argues that Chase owed a duty to accept a “check” made out for $1,300,908.00 which Plaintiff defaced to the point that it is obviously void on its face (“Bogus Check”). III. ARGUMENT California Code of Civil Procedure (“CCP”) Section(s) 430.10(e)(f) and 430.30(a) allow a defendant to interpose general and special demurrers to a Complaint. Section 430.10 provides, in pertinent part: “the party against whom a complaint or cross complaint has been filed may object, by demurrer or answer, as provided in Section 430.30, to the pleading on any one or more of the following grounds: (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” Furthermore, “without supporting facts demonstrating the illegality of a rule or regulation, an allegation that (the defendant) is in violation of a specific statute is purely conclusionary and insufficient to withstand demurrer.” Baker v. Miller (1923) 190 Cal. 263, 267, 212. Instead, a Plaintiff must plead facts sufficient to establish every element of that cause of action. Cantu v. Resolution Trust Corp., (1992) 4 Cal.App.4th 857, 879. Moreover, if any element of a cause of action is negated, a demurrer to (that) cause of action is properly sustained. Ross v. Creel Printing & Publishing Company, Inc., et al. (2002) 100 Cal. App.4™ 736, 748. ? See Corporate Assignment of Deed of Trust, attached to RIN as Exhibit “C”. * See Minute Order dismissing the Prior Action and Judgment, attached to RIN as Exhibits “D” and “E”, respectively. > See Plaintiff's Complaint and exhibits attached thereto, in general. 6 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O A. The Entire Complaint Lacks Facts Upon Which Relief May Be Granted and is Fatally Uncertain. 1. The Compalint Lacks Sufficient Facts. a. Each Claim is Barred by Res Judicata. The doctrine of res judicata (claim preclusion) gives conclusive effect to a former final judgment in subsequent litigation involving the same parties (or their privies) and the same controversies. Boeken v. Philip Morris USA, Inc.,48 Cal. 4th 788, 797 (2010); Frommhagen v. Board of Supervisors of Santa Cruz County, (1987) 197 Cal.App.3d 1292, 1299. Thus, an unsuccessful plaintiff cannot avoid effects of an adverse final judgment by later refiling and raising the same causes of action, or claims that were within the scope of the first action but not raised there even though they could have been. Henn v. Henn, (1980) 26 Cal.3d 323, 329-30; Craig v. County of Los Angeles, (1990) 221 Cal.App.3d 1294, 1299. Res judicata also precludes re-litigation of a cause of action based upon different damages claims, so long as the damages all stem from violation of the same primary right, res judicata applies. Mycogen Corp. v. Monsanto Co., (2002) 28 Cal.4™ 888, 905-909. Collateral estoppel, also known as issue preclusion, "operates in a second suit ... based on a different cause of action ... as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." Boeken, supra, at 797. The elements for applying res judicata or collateral estoppel are as follows: (1) the claim or issue raised in the present action is the same as a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in an adjudication on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. Boeken at 797 (emphasis added). Res judicata applies not only to claims that were raised, but also to claims that could have been raised: If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or 7 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O could have been raised, on matters litigated or litigable. Warga v. Cooper, (1996) 44 Cal. App. 4th 371, 377-78 (emphasis added). The instant case is no different than the Prior Action which resulted in judgment against Plaintiff and in favor of Defendant’s privy, SPS. In both instances, Plaintiff advanced the outrageous theory that the Bogus Check somehow resulted in a payoff of the subject loan. As such, Plaintiff’s latest action is barred by res judicata. b. The Underlying Theory of Liability is Without Merit. As best can be ascertained, each and every one of Plaintiff’s individual Causes of Action stems from the “Redemption Theory” that has been thoroughly rejected by Courts in California. The Redemption Theory is one typically espoused by the sovereign citizen movement, which believes that the federal government owes money to the citizens, which can, among other things, be redeemed and used to pay off debts. However, such a theory is not recognized as valid in California. U.S. v. Landers a1o® Cir. May 5, 2009) 564 F.3d 1217; Monroe v. Beard (E.D.Pa. Aug. 17, 2007) 2007 U.S.Dist. LEXIS 60432. Thus, to the extent any one of Plaintiff’s claim is based on such a theory, it necessarily fails. c. Failure to Name Indispensible Party. Pursuant to CCP §430.10(d), a complaint lacks facts upon which relief maybe granted where the plaintiff has failed to properly join the parties. Under CCP §389, an indispensable party is one: 1) whose absence would prevent complete relief from being afforded to the parties; or 2) who claims an interest in the subject matter of the action and who is so situated that, if he were not joined, disposition of the action would impair his ability to protect that interest or leave the other parties subject to a substantial risk of multiple/inconsistent obligations by reason of that claimed interest. Furthermore, where a number of persons have an undetermined interest in the same property and one of them files suit seeking to either recover the whole, fix his purported share, or recover a portion claimed by him, all other persons with similar interests are “indispensable parties” to said lawsuit. In re Marriage of Ramirez, (2011) 198 Cal. App.4"™ 336, 344; Washington Mutual Bank v. Blechman, (2007) 157 Cal. App.4™ 662, 667. 8 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O Co-Borrower is an owner of the Property and a borrower on the Loan. Without her participation in this action, Defendants are at risk of facing inconsistent judgments, double recovery, etc. As such, the entire Complaint should be dismissed for the simple reason that Plaintiff has failed to join all indispensable parties. 2. The Entire Complaint is Fatally Uncertain. A pleading that is uncertain, ambiguous, or unintelligible should be dismissed. Code of Civil Procedure §430.30(f). It is difficult, if not impossible, to make any sense of Plaintiff’s allegations. As discussed above, the terms of any purported agreement between the parties remains wholly unclear. In fact, it is difficult to even ascertain which document serves as the basis of Plaintiff’s breach of contract case. Nor is it certain whether Defendant even executed the “contract” with the intention of being bound by its terms. Because it is impossible to make any sense of Plaintiff’s allegations, the Complaint must be dismissed as fatally uncertain. B. The First Cause of Action for Breach of Contract Lacks Sufficient Facts. A Cause of Action for breach of contract requires a pleading of the following: (a) the contract; (b) Plaintiff’s performance or excuse for non-performance; (c) Defendant’s breach; and (d) damage to Plaintiff. B.E. Witkin, California -Procedure, Vol. 4 Pleading §515, pg. 648 (WEST 5" Ed., 2008). 1. No Facts Suggesting Valid Contract Between the Parties. An enforceable contract requires that the contracting parties be capable of contracting, mutual consent between the parties, a lawful object, and sufficient consideration. See Civil Code, §1550. a. Insufficient Terms. “Under basic contract law “an offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain.” Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770, citing 1 Witkin, Summary of Cal. Law 9" ed. 1987) Contracts, §145, p.169, citing Rest.2d Contracts, §33. “Where a % See Deed of Trust and California Grant Deed, attached to RIN as Exhibits “A” and “C”, respectively. 9 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” Ladas, supra, 19 Cal.App.4th at p. 770 (citations). It is impossible to make any sense of the underlying “contract” in this case. First, there is nothing to suggest Defendant agreed to modify the terms of the subject loan. In fact, it is even left unclear what the parties intended to modify, if anything. Nor is there anything to indicate that Defendant agreed to accept a “check”, the face of which was marred by Plaintiff’s handwritten scribbles. References to the “obligations of the United States” and Plaintiff as a “Registered Private Banker” further obscures the terms to which the parties are alleged to have agreed. Because the terms to which the parties agreed remains wholly unclear, the Breach of Contract claim necessarily fails. b. Failure to Comply with the Statute of Frauds. The statute of frauds requirement is not satisfied unless “the name relied upon as a signature was placed on the document or adopted by the party to be charged with the intention of authenticating the writing.” Marks v. Walter G. McCarty Corp., (1949) 33 Cal.2d 814, 820; McNear v. Petroleum Export Corporation, (1929) 208 Cal.162, 167. In other words, in order for the signature to satisfy the statute of frauds, the signor must have intended to be bound by the contract in question. In this case, the “contract” relied upon by Plaintiff was executed by a puproted branch manager of Chase whom was careful to note that the signature was solely to acknowledge receipt and acceptance. There is nothing on the “contract” which suggests that the signor intended to bind Chase by its terms. Without any such indication, this claim fails under the statute of frauds. ¢. No Valid Consideration. An enforceable contract requires that the contracting parties be capable of contracting, mutual consent between the parties, a lawful object, and sufficient consideration. See Civil Code, §1550. Here, even a cursory review of the “check” Plaintiff points to as proof of payment reveals it to be bogus. After all, Plaintiff apparently scribbled over the front of the 10 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O “check”, rendering it all but illegible. Nor does Plaintiff allege any facts to suggest that there were sufficient funds in his bank account to honor the “check” in the purported amount of $1,300,908.00. In the absence of any such facts, this claim fails. 2. Plaintiff’s Own Failure to Perform. As noted above, in order to allege a claim for breach of contract, a plaintiff must allege facts showing that he performed his obligations under the terms of the contract or that he was excused from doing so. And, while the plaintiff is allowed to plead his performance of the contractual obligations in general terms, “excuses must be pleaded specifically.” Durell v. Sharp Healthcare, (2010) 183 Cal. App.4™ 1350, 1367. As noted above, it remains unclear whether the parties actually agreed that Plaintiff’s tender of $1,300,908.00 would satisfy the entire balance owing on the subject loan. Nonetheless, if the parties actually entered into such an arrangement, this claim fails because it is impossible to ascertain whether Plaintiff’s tender of a “check” which Plaintiff apparently defaced constitutes satisfaction of his contractual duties. 3. No Facts Suggesting Resulting Harm to Plaintiff. There is nothing in the Complaint to suggest that Plaintiff has actually suffered any real harm anyway. First, as noted above, it is unclear whether Plaintiff even had the necessary funds in the bank to cover the “check.” Moreover, even if, as Plaintiff insists, Defendant failed to drive out to the Property and physically pick up the check, how did that result in actual harm to Plaintiff? If Plaintiff’s attempt to pay off the loan was genuine, why did he not simply mail the check to Defendant (or arrange for another type of payment)? 4. Failure to Allege Breach with Specificity. With respect to a viable Breach of Contract claim, “[f]acts alleging a breach...must be pleaded with specificity.” Levy v. State Farm Mutual Auto Ins. Co., (2007) 150 Cal. App. 4 1,5. As touched on above, it is impossible to ascertain the terms to which the parties are alleged to have agreed and/or whether Defendant agreed to accept the bogus “check” offered 11 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O up by Plaintiff. In the absence of any details explaining what it is that Defendant did to have breached the supposed agreement, this claim fails. C. The Second Cause of Action for Fraud Lacks Sufficient Facts. A plaintiff alleging a claim for fraud or intentional misrepresentation must state facts showing: “(1) a misrepresentation which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages.” Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173. 1. No Misrepresentations. There is nothing in the Complaint or the exhibits attached thereto which suggest that Defendant misrepresented anything to Plaintiff. As discussed above, both the Complaint and the supposed “contract” on which it is based are bereft of any facts showing that Defendant agreed to accept the Bogus Check as full satisfaction of the underlying debt. As such, this claim fails. 2. Failure to Allege Claims with Required Degree of Specificity. “Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged. Cadlo v. Owens-Illinois, Inc., (2004) 125 Cal.App.4th 513,519. Here, Plaintiff’s claim lacks facts sufficient to state a typical Cause of Action, much less one which requires a heightened degree of specificity such as fraud. For this reason alone, Plaintiff’s claim should be dismissed. 3. This Claim Rises and Falls with Plaintiff’s Surrounding Causes of Action. Plaintiff’s Second Cause of Action is derivative of his other defective claims. Thus, this claim is defective for the very same reasons as the other Causes of Action. D. The Third Cause of Action for “RICO” Lacks Sufficient Facts. The Racketeer Influenced and Corrupt Organizations Act (“RICO”) statutes require a plaintiff plead and prove (1) conduct; (2) of an enterprise (3) through a pattern (4) of racketeering activity.” ~~ McMartin v. Children’s Institute International, (1989) 212 Cal. App.3d 1393, 1406. 12 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF OO 00 JI A N Un BA W N = NN ND N N N N N ND N D E Em Em m e e m e m e m e m c o NN A N Wn RA R W N = D O O N N N R E W I N D = O 1. This Claim is Based on Plaintiff’s Unfounded Conclusions of Law. As touched on above, in order to survive an attack by demurrer, a Complaint must state more than just speculative legal conclusions. Rather, it must allege ultimate facts, not evidentiary facts or conclusions of law. Logan v. Southern Cal. Rapid Transit Dist., (1982) 136 Cal.App.3d 116, 126. A plaintiff cannot avoid this duty by simply reciting unfounded “contentions, deductions or conclusions of fact or law.” Ashou v. Liberty Mut. Fire Ins. Co., (2006) 138 Cal. App.4™ 748, 755. Here, Plaintiff conveniently concludes that Defendant engaged in racketeering by “inteintionally avoiding the TERMS AND CONDITIONS after signed Acceptance and agreement of said property.” But, Plaintiff’s mere conclusions of law are not sufficient to support a valid Cause of Action. As such, Plaintiff’s RICO claim should be dismissed. 2. No Facts Suggesting Enterprise Among Defendants. Plaintiff fails to allege any facts showing an enterprise between or among the alleged co-conspirators. For this reason alone, Plaintiff’s RICO claim fails. 3. No Facts Suggesting Pattern. Plaintiff similarly fails to allege any worthwhile facts to suggest a pattern or practice by the alleged co-conspirators. IV. CONCLUSION In light of the above, Defendant respectfully requests that the Court grant its Demurrer to the Complaint in its entirety, without leave to amend. Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP Dated: December 19, 2018 By: s/James J. Ramos, Esq. James J. Ramos, Esq. Attorneys for Defendant, JP MORGAN CHASE BANK N.A. 13 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Barbara Espinoza, declare as follows: I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On December 19, 2018, I served the within NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT JP MORGAN CHASE BANK N.A. TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on all interested parties in this action as follows: [X] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Alan N. Slater 2197 Wynfair Ridge Way San Jose, CA 95138 Tel.: (408) 930-1084 Email: Alan @ebo-inc.com Plaintiff In Pro Per [X] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. [] (BY CERTIFIED MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices, via Certified Mail, Return Receipt Requested. [] (BY PERSONAL SERVICE) I caused personal delivery by ATTORNEY SERVICE of said document(s) to the offices of the addressee(s) as set forth on the attached service list. [] (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477-9200, complied with California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original Proof of Service. [] (BY FEDERAL EXPRESS OVERNIGHT- NEXT DAY DELIVERY) I placed true and correct copies thereof enclosed in a package designated by Federal Express Overnight with the delivery fees provided for. [XI (STATE) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on December 19, 2018, at Newport Beach, California. s/ Barbara Espinoza Barbara Espinoza 1 PROOF OF SERVICE