Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-04776-JL

Document 52

Filed 04/17/2008

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CARLETON L. BRIGGS, SBN 117361 Law Offices of Carleton L. Briggs 3510 Unocal Place, Suite 209 Santa Rosa, CA 95403-0918 Telephone: (707) 523-2251 Facsimile: (707) 523-2253 E-mail: [email protected] James E. Rice, SBN 213670 GINES & RICE 2319 Polk Street Caldwell, Idaho 83605 Telephone: (208) 455-2302 Facsimile: (208) 377-8722 E-mail: [email protected] Attorneys for Defendant GREENSPRINGS BAPTIST CHRISTIAN FELLOWSHIP TRUST UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BARBARA MILLER, individually and as guardian ad litem of Molly Miller, an individual; ANNE MILLER, an individual; and ROBERT MILLER, an individual, Plaintiffs, vs. GREENSPRINGS BAPTIST CHRISTIAN FELLOWSHIP TRUST, et al., Defendants. / Date: June 4, 2008 Time: 9:30 a.m. Courtroom: F, 15th Floor Chief Magistrate Judge: Hon. James Larson Complaint filed: August 17, 2007 First Amended Complaint filed: March 28, 2008 Trial date: None Case No. C 07-04776 JL DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [FRCP 12(b)(6)] _________________________________

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1 DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [FRCP 12(b)(6)]

To all parties and their attorneys of record: PLEASE TAKE NOTICE that on June 4, 2008, at 9:30 a.m., or as soon thereafter as the matter may be heard, in the above-entitled court, located at 450 Golden Gate Avenue, San Francisco, California, defendant Greensprings Baptist Christian

Case 3:07-cv-04776-JL

Document 52

Filed 04/17/2008

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Fellowship Trust will move the Court to dismiss the complaint against it under FRCP 12(b)(6) on the following grounds: 1. The purported claim for "breach of contract - promissory estoppel" fails to state a claim upon which relief can be granted because the promises alleged in the complaint cannot give rise to any damage claim for breach of contract by plaintiffs; 2. The purported claim for "breach of contract - promissory estoppel" fails to state a claim upon which relief can be granted because it is barred by the statute of limitations under Code of Civil Procedure § 339; 3. The purported claim for "breach of contract - promissory estoppel" fails to state a claim upon which relief can be granted because plaintiffs lack standing to bring the action as they have sustained no actual injury; 4. The purported claim for conversion fails to state a claim upon which relief can be granted because the facts alleged show that plaintiffs never owned or had any right to possess the $500,000 alleged to have been converted; 5. The purported claim for fraud fails to state a claim upon which relief can be granted because the facts alleged show that plaintiffs have not been damaged; 6. The purported claim for declaratory relief fails to state a claim upon which relief can be granted because the facts alleged show that the $500,000 does not and never did belong to plaintiffs; 7. The purported claim for a constructive trust fails to state a claim upon which relief can be granted because imposition of a constructive trust is a remedy, not a claim, the first amended complaint fails to state any underlying claim that warrants such a remedy, and it is undisputed that defendants do not possess the $500,000 upon which plaintiffs seek to impose a constructive trust; 8. The purported claim for specific performance fails to state a claim upon which relief can be granted because plaintiff seeks to recover money damages and thus

2 DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [FRCP 12(b)(6)]

Case 3:07-cv-04776-JL

Document 52

Filed 04/17/2008

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has an adequate remedy at law; 9. The purported claim for intentional interference with inheritance rights fails to state a claim upon which relief can be granted because plaintiffs cannot establish that they had any right to inherit from Elsie Turchen, and no such cause of action is recognized under the laws of California or Hawaii; 10. The purported claim for negligent interference with inheritance rights fails to state a claim upon which relief can be granted because plaintiffs cannot establish that they had any right to inherit from Elsie Turchen, and no such cause of action is recognized under the laws of California or Hawaii. The motion will be based on this notice of motion and motion, the memorandum of points and authorities filed herewith, the accompanying request for judicial notice, and the pleadings and papers filed herein.

Dated: April 17, 2008

LAW OFFICES OF CARLETON L. BRIGGS

/s/ Carleton L. Briggs CARLETON L. BRIGGS Attorneys for Defendant GREENSPRINGS BAPTIST CHRISTIAN FELLOWSHIP TRUST

3 DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [FRCP 12(b)(6)]