Reply To Opposition To Demurrer For First Amended Complaint

Reply

Cal. Super. - 2nd Dist.November 14, 2019

Electronically FILED 10 11 12 3 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 b y Superior Court of California, County of Los Angeles on 06/18/2020 07:15 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. Gonzalez,Deputy Clerk JAMES W. BATES (143757) LAW OFFICES OF JAMES W. BATES, A PROFESSIONAL CORPORATION 1055 E. Colorado Blvd., 5th Floor Pasadena, California 91106-2327 (818) 248-1911 Attorneys For Defendants FOREMAX INVESTMENT, LLC, a California limited liability company and LISA LIAO, an individual SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES UNLIMITED JURISDICTION NAI CHI HSU also known as Case No. 19PSCV01026 LAWRENCE NAI HSU; (Assigned for all purposes to Judge Peter A. Hernandez - EA Plaintiffs, Dept. 0) -Vs-- REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT FOREMAX INVESTEMENT, LLC, a California limited liability Date: June 24, 2020 company; LISA LIAO, an Time: 2:00 p.m. individual; and DOES 1 through Dept: EA “0” 500, inclusive, Trial Date: None Defendants. Motion Cutoff: None Discovery Cutoff: None Complaint filed 11/14/19 Defendants FOREMAX INVESTMENT, LLC, a California limited liability company (“FOREMAX”) and LISA LIAO, an individual (“LIAO”) (FOREMAX and LIAO are hereinafter collectively referred to as “Defendants”) hereby respond to the Opposition To Demurrer To First Amended Complaint (“Opposition”) filed by Plaintiff NAI CHI HSU aka LAWRENCE NAI HSU (“Plaintiff”) as follows: 1 REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT 10 1k 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. There Are Insufficient Facts To Establish A “Fiduciary Relationship” Between Plaintiff And Defendants: Again, the FAC incorporates paragraph 11 into each and every cause of action. Paragraph 11’s allegation that Plaintiff and Defendants were in a “fiduciary relationship” is conclusionary devoid of facts. In the Demurrer, Defendant raise the following questions regarding the lack of facts set forth in the FAC: “What were the specific terms of the joint venture? What was the structure of the joint venture? Was it a partnership? Was it a corporation? Was it a limited liability company? What were the obligations of Plaintiff to Defendants and vice versa? Plaintiff does not allege such facts. Plaintiff's allegations of a ‘joint venture’ are a mere legal conclusion.” [Demurrer, page 6, lines 4-13]. Plaintiff conveniently does not respond to these questions in the Opposition but rather summarily dismisses them as “senseless argument.” [Opposition, page 1, lines 21-23]. 2. The First Cause Of Action For Intentional Misrepresentation, Second Cause Of Action For Promise Made Without Intent To Perform Fail, Fifth Cause Of Action For Quiet Title, And Sixth Cause Of Action For Cancellation Of Written Instrument And Seventh Cause Of Action For Accounting Fail To State Facts Sufficient To Constitute A Cause Of Action Against Defendants And Are Uncertain: Again, Plaintiff argues in conclusionary language that he has met the pleading requirements for each of these causes of action, he has not. e Again, the FAC alleges a “fiduciary relationship” in conclusionary language. 1 REPY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e¢ The FAC does not allege how, when, where, and by what means the alleged representations were made by Defendants (and Plaintiff claims that the FAC alleges who made the representations but this was not raised as an issue in the Demurrer) . oe There are insufficient allegations of “justifiable reliance”. Plaintiff alleges reliance as follows: “Plaintiff relied on Defendants’ honesty, and such reliance was reasonable because of the fiduciary relationship between the parties that existed because of the Venture” [FAC, 1 19, page 6, lines 14-16]. Again, this is conclusionary devoid of any facts that would establish “justifiable reliance.” Plaintiff’s argument regarding reliance makes no sense: Plaintiff induced Defendants to invest in the Venture, the Venture failed, Plaintiff voluntarily agreed to reimburse Defendants and now, as a result, Plaintiff claims his reliance on Defendants’ alleged misrepresentations regarding Plaintiff’s promise to pay back Defendants’ failed investment secured by a Deed of Trust was “reasonable” because of his “fiduciary relationship” with Defendants in the alleged “joint venture”? 3. Plaintiffs Opposition To The Demurrer To The Ninth Cause Of Action For Failure To State Facts Sufficient To Constitute A Cause Of Action For Violation Of Statutes Is Against The Law: Plaintiff’s counsel’s argument that “Since no challenge is raised to any of the other statutes the violation of which is alleged, it appears that Defendants acknowledge their conduct consitituted violations of the statutes alleged.” [Opposition, page 9, lines 13-15]. This is not the law. Plaintiff’s counsel’s is dreaming of a totally different system of justice. This is the demurrer stage of this litigation. There is NO authority that 2 REPY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provides that the failure to raise an argument is an acknowledgment of wrongdoing. Plaintiff’s counsel makes this argument without any authority for doing so. The Ninth Cause Of Action alleges: “a private right of action is therefore implied in such statutes” [Opposition, page 11, line 5]. However, no private right of action is provided for by Penal Code § 115. “[A] private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right to sue for damages.” [Vikco Ins. Servs., Inc. Vv. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62]. “If the Legislature intends to create a private cause of action, we generally assume it will do so directly[,] ... in clear, understandable, unmistakable terms.” [Id. at 62-63]. Penal Code § 115 does not provide for a private right of action. 4. The Eleventh Cause Of Action For Injunctive Relief Is Not A Cause Of Action - There Is No Cause Of Action For Injunctive Relief - Injunctive Relief Is A Remedy: Plaintiff disregards the Second District Court Of Appeal decision in Ivanoff v. Bank Of America, N.A. (2017) 9 Cal.App.5th 719, 734 as a distinction without a difference. The Second Appellate District clearly ruled “ Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief.’ (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65, 183 Cal.Rptr.3d 654 . . .” The Eleventh Cause Of Action is not a cause of action but rather a remedy and must be dismissed. NN AAA Y 5% 3 REPY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. The Opposition Does Not Address The Issue Of The Failure To Plead Facts Sufficient To Constitute A Twelfth Cause Of Action For Common Count: Plaintiff offers no authority to support his position that the Twelfth Cause Of Action properly alleges facts to constitute a cause of action. The Twelfth Cause Of Action incorporates by reference all prior causes of action. [FAC, 1 58, page 12, lines 19-20]. Essentially, Plaintiff is repleading all prior causes of action as a common count. For the very same reasons the prior causes of action fail, so must the Twelfth Cause Of Action for Common Count. Dated: June 18, 2020 At$bOrneys For Defendants FOREMAX INVESTMENT, LLC, a California limited liability company and LISA LIAO, an individual 4 REPY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT PROOF OF SERVICE Nai Chi Hsu v. Foremax Investment, LLC, etc. et al. Los Angeles Superior Court, Case Number 19PSCV01026 - STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is 1055 E. Colorado Blvd., 5% Floor, Pasadena, California 91106-2327. On June 18, 2020, I caused to be served the foregoing document described as: REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT on the interested parties in this action as follows: (VIA ELECTRONIC TRANSMISSION) by electronic transmission from an approved Electronic Filing Service Provider, as part of the Los Angeles Superior Court e-filing system, to the email addresses set forth below: James E. Klinkert, Esq. jklinkert@rkmattorneys.com Paul J. Gutierrez, Esq. pgutierrez@rkmattorneys.com Kelly A. Neavel, Esq. Kelly@neavellaw.com Klinkert, Gutierrez & Neavel 1601 E. Orangewood Avenue, Suite 105 Anaheim, California 92805-6810 (VIA U.S. MAIL) by placing a true copy thereof enclosed in a sealed envelope addressed to the addressee. I deposited the envelope in the mail at Pasadena, California. The envelope was mailed with postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 18, 2020 at Pasadg AMES W. BATES