Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/elder abuse case and its proceedings.)
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
PLAINTIFF’S EIGHTH CAUSE OF ACTION FOR FRAUD IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS
Defendant’s sole argument against the fraud cause of action is that specific facts were not pleaded. Plaintiff respectfully disagrees. Extensive factual allegations of fraud exist throughout the complaint.
Defendant’s demurrer on grounds of “uncertainty” lacks merit. First, Plaintiff’s complaint pleads numerous specific facts and allegations. [S]pecificity in the pleadings is not required because any doubts are more properly resolved through discovery. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Furthermore, any specificity requirements are relaxed when, as here, the defendants necessarily have superior knowledge of the facts. (Committee on Children’s Television, Inc v. General Foods Corp (1983) 35 Cal.3d 197, 213-214.)
Fraud is either actual or constructive. (Cal. Civil Code 1571.) Plaintiff’s complaint alleges both.
California Civil Code section 1572 defines actual fraud provides as follows:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
3. The suppression of that which is true, by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive.
PLAINTIFF’S NINTH CAUSE OF ACTION FOR CONSPIRACY IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS
Defendant’s demurrer to the ninth cause of action should be overruled. Defendant argues that In order to state a cause of action based upon conspiracy the plaintiff must allege the formation and operation of the conspiracy. the wrongful act or acts done pursuant to it, and the damage resulting from such acts. Plaintiff’s complaint does so. Plaintiff respectfully submits that these allegations satisfy pleading requirements.
Since the date of filing the first amended complaint, Plaintiff has discovered an extensive amount of new evidence, facts and information much of which has already been produced in discovery. Should the court sustain any portion of the demurrer. Plaintiff is able and ready to file an amended pleading further clarifying the causes of action and claims alleged, as well as the factual allegations related to each. (See Part 10 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.