Yes, LuckyLucky2, Adam's Demurrer was especially brilliant, cutting to the chase:
ESSENTIAL ARGUMENTS OF ADAM'S DEMURRER HIGHLIGHTED BY YOURS TRULY, burke_dennings:
After two years, during which Plaintiffs’ counsel have filed eight separate iterations of their complaint in federal and state court, the allegations before this Court remain insufficient and, therefore, the demurrer should be sustained without leave to amend and the case should be dismissed with prejudice.
As explained in previous briefing, Rebecca Zahau’s tragic death was, after a thorough investigation by law enforcement, determined to be a suicide. Unable to accept this conclusion, Plaintiffs’ counsel filed parallel federal and state cases with nothing more than threadbare allegations that three individuals conspired to murder her. Yet after four years of investigation and four sets of counsel, the only allegation connecting Defendant Adam Shacknai to the purported conspiracy is based on a “belief” held by the Plaintiffs. Where an allegation is based on nothing more than a “belief,” it is black-letter law that the allegation must be accompanied by allegations setting forth facts upon which the belief is founded. Gomes v.Countrywide Home Loans, Inc. 192 Cal. App. 4th 1149, 1159 (2011). The Second Amended Complaint, however, fails to make any such allegations.
After eight attempts to state a claim against Mr. Shacknai, enough is enough. This demurrer should be sustained, and this time, sustained without leave to amend.
IV. ARGUMENT
A. No Factual Basis Is Set Forth for the Allegations Against Mr. Shacknai.
As the Court explained in its May 1 order: “Allegations based on information and belief must set forth facts upon which the belief is founded. Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th 1149, 1159; Dowling v. Spring Val. Water Co. (1917) 174 Cal. 218, 221.” Order at 4. Rader Decl. Ex. M at 4. Indeed, Gomes makes clear that “[a] pleading made on information and belief is insufficient if it merely asserts the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true.” Id., 192 Cal. App. 4th at 1158.
Under this standard, the SAC is insufficient. Like the FAC, the allegations that connect Mr. Shacknai to the purported conspiracy remain unchanged—they are alleged only on information and belief. That is, the FAC alleges nothing more than: “Plaintiffs believe that at this time, ADAM, who . . . was sleeping in the guest house at the residence, was awakened by the commotion and came to the scene.” FAC ¶ 21 (emphasis added). Although the SAC has certain additional allegations as to the other defendants, there are none with respect to Mr. Shacknai. Rather, the SAC simply recycles the same sentence from the FAC, which this Court already has found insufficient: “Plaintiffs believe that at this time, ADAM, who . . . was sleeping in the guest house at the residence, was awakened by the commotion and came to the scene.” SAC ¶ 22 (emphasis added). Simply, the SAC utterly fails to allege any information that leads Plaintiffs (or their counsel) to believe this allegation is true. Therefore, Mr. Shacknai’s demurrer should be granted.[\B]
C. The Court Should Dismiss the Claims Against Mr. Shacknai With Prejudice.
The allegations of the SAC—which, between the various complaints submitted to this Court and in federal court, are in their eighth iteration—accuse Mr. Shacknai of a heinous crime. Yet after these myriad iterations, and after being directed by this Court to plead the facts that lead Plaintiffs and their counsel to include the allegations made on information and belief, the only allegation that supposedly connects Mr. Shacknai to the purported conspiracy has no factual basis.The SAC merely recites the same unsupported “belief” allegation from the defective prior complaint: “Plaintiffs believe that at this time, ADAM, who . . . was sleeping in the guest house at the, was awakened by the commotion and came to the scene.” SAC ¶ 22 (emphasis added).
Not only is responding to the various iterations of the complaint taking their toll on the defendants, so are the media reports. For example, on the same day as the August 1, 2014 CMC—at which the parties agreed the Plaintiffs would file an amended complaint before this Court—an article dappeared stating: “Attorneys for both sides will be back in court next January [i.e., January 2015] to set a trial date.” Rader Decl. Ex. O. The article quoted Plaintiffs’ counsel extensively, including with respect to the allegations as to Mr. Shacknai. Id. Most recently, approximately a week after the Court ordered Plaintiffs’ counsel to re-plead the complaint, yet another article appeared about this case. Plaintiffs’ counsel “told NBC7 there is now a piece of evidence he thinks could be the key to this mysterious case: an audio recording of investigators interviewing a woman who was near the Spreckels Mansion before Zahau's body was discovered.” Id. Ex. P. It is unclear why this merited the coverage it received. Four years ago, Plaintiffs’ then-counsel was brandishing this exact information as “new compelling evidence” in support of her contention that the Decedent was murdered. Id. Ex. Q.
After eight iterations of the complaint spanning nearly two years in both federal and state court, Plaintiffs’ counsel have alleged nothing more than they “believe” Mr. Shacknai joined the purported conspiracy. At this point, the only conclusion to be drawn is that they have alleged nothing more because they cannot. As a matter of law, that a plaintiff “believes” someone committed a wrong is not enough to require someone to stand trial. Therefore, the SAC should be dismissed with prejudice.
V. CONCLUSION
After four years of investigation, four sets of counsel, and eight iterations of the complaint, Plaintiffs’ counsel have been unable to come forward with any allegation for including Mr. Shacknai as a defendant in this case other than a belief for which they have no factual basis. Therefore, the Complaint and each of its causes of action should be dismissed as to Mr. Shacknai, and dismissed with prejudice.
Dated: June 1, 2015 WINSTON & STRAWN LLP
