UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. Plaintiff,

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1 Case :-cv-0-gpc-wvg Document - Filed // Page of SHUMENER, ODSON & OH LLP Betty M. Shumener (SBN ) John D. Spurling (SBN ) Staci M. Tomita (SBN ) 0 South Hope Street, Suite 0 Los Angeles, CA 00- Telephone: --0 Facsimile: bshumener@soollp.com jspurlin@soollp.com stomita@soollp.com Jill A. Martin (SBN ) c/o Trump National Golf Club Los Angeles One Trump National Dr. Rancho Palos Verdes, California 0 Telephone: -0- Facsimile: -- jmartin@trumpnational.com Attorneys for Defendant DONALD J. TRUMP UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ART COHEN, Individually and on Behalf of All Others Similarly Situated, VS. DONALD J. TRUMP Plaintiff, Case No. -cv- GPC WVG MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CLASS ACTION Hon. Gonzalo P. Cu el, presiding Date: April, Time: :0 p.m. Place: Courtroom D MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS

2 Case :-cv-0-gpc-wvg Document - Filed // Page of TABLE OF CONTENTS PAGE INTRODUCTION II. PLAINTIFF'S ALLEGATIONS A. Procedual History B. SMA Declares A Maturity Default III. ARGUMENT A. Plaintiff's Complaint Constitues Impermissible Claim Splitting B. Plaintiff's Complaint Must Be Dismissed Under Rule (b)(). Plaintiff's RICO Claim Is Barred By The Statute Of Limitations. Plaintiff Failed to Allege Any Actionalbe Racketeering Activity By Trump. Plaintiff Has Failed to Plead Fraud With The Required Particularity IV. CONCLUSION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

3 Case :-cv-0-gpc-wvg Document - Filed // Page of TABLE OF AUTHORITIES PAGE Cases Adams v. California Dep't of Health Services, F.d (th Cir. 0) Agency Holding Corp. v. Malley-Duff & Associates, Inc., U.S. ()... Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, U.S. () Balistreri v. Pacifica Police Dep't, 0 F.d (th Cir. ) Bell Atlantic Corp. v. Twombly, 0 U.S. (0) Bender v. Suburban Hosp., Inc., F.d (th Cir. ) Biogenex Laboratories, Inc. v. Ventana Medical Systems, Inc., 0 WL (N.D. Cal. August, 0) Clegg v. Cult Awareness Network, F.d (th Cir. ) Cnty. of Marin v. Deloitte Consulting LLP, F. Supp. d 0 (N.D. Cal. ),, Corley v. Rosewood Care Center, Inc. of Peoria, F. d 0 (th Cir. 0)... Edgenet, Inc. v. GSI, AISBL, F.Supp.d (E.D.Wis. ) Edmunson v. Procter & Gamble Co., WL 0 (S.D. Cal. Sept., ) Flowers v. Continental Grain Co., F.d (th Cir. ) Grimmett v. Brown, F.d 0 (th Cir. ) Hooker v. Simon, WL (E.D. Cal. Sept., ) In re All Terrain Vehicle Litig., F. Supp. (C.D. Cal. ), L.A. Unified School District v. L.A. Branch NAACP, F.d (th Cir. ) McGlinchy v. Shell Chem. Co., F.d 0 (th Cir. ) McKinniss v. Sunny Delight Beverages Co., 0 WL (C.D. Cal. Sept., 0) Rotella v. Wood, U.S. (00), Russ v. Standard Ins. Co., 0 F. d (th Cir. ) Single Chip Sys. Corp. v. Intermec IP Corp., F. Supp. d (S.D. Cal. 0) ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

4 Case :-cv-0-gpc-wvg Document - Filed // Page of Waterfall Homeowners Association v. Viega, Inc., F.R.D. () Weisbuch v. County of Los Angeles, F.d (th Cir. ) Williams v. Aztar Indiana Gaming Corp., F.d (th Cir. 0) Statutes U.S.C. () U.S.C. U.S.C. (c) ("RICO") Fed. R. Civ. P. (b)() iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

5 Case :-cv-0-gpc-wvg Document - Filed // Page of MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The Complaint filed in this action is nothing more than the latest in a series of unfounded attacks by Plaintiff's counsel on Donald J. Trump ("Trump"). This latest attack was prompted by the Court's denial of the motion for leave to amend the scheduling order to file an amended complaint in another class action that Plaintiff's counsel filed against Trump, styled as Tarla Makaeff, et. al. v. Trump University, LLC, et. al., which is currently proceeding as Case No. :-cv-000 (hereinafter, "Initial Case"). The current Complaint consists of just one claim - Violations of the Racketeer Influenced and Corrupt Organizations Act, U.S.C. (c) ("RICO") a statute established to punish those involved in organized crime, not legitimate businessmen such as Trump. The Complaint seeks to make an end-run around the Court's order in the Initial Case, constitutes improper claims splitting, is barred by the statute of limitations, and does not state a single RICO violation. After filing three amended complaints, and one year past the deadline for filing amended pleadings, the class representatives in the Initial Case sought to amend their complaint a fourth time to add the very RICO claim alleged in this action for the same class of plaintiffs. The Court denied leave to file the fourth amended complaint, holding that no good cause supported the amendment and that plaintiffs had not been diligent in seeking leave to amend. Undetered by the Court's order denying leave to amend, Plaintiff's counsel simply substituted a different class representative on the pleading and filed this Complaint as a new action. The RICO claim at issue here is identical to that contained in the fourth amended complaint that Plaintiff's counsel attempted to file in the Initial Case. Plaintiff's counsel admit in their Notice of Related Cases that this action and the Initial Case involve the same transactions and events, the same facts, and the same MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

6 Case :-cv-0-gpc-wvg Document - Filed // Page of parties. Plaintiff is already a member of the proposed class in the Initial Case and is represented by the same counsel. Accordingly, the filing of this action constitutes impermissible claim splitting and must be dismissed with prejudice. In addition to being in direct contravention of this Court's order denying leave to amend, Plaintiff has not stated (and cannot state) a RICO claim. All civil RICO claims are governed by the four-year statute of limitations set forth in the Clayton Act. Plaintiff alleges that the purported representations were made in spring of 0, that he attended the Foreclosure Real Estate Retreat in May, 0, and that he purchased the Gold Elite program on May, 0. (Complaint -.) Thus, all of the predicate acts underlying Plaintiff's RICO claim occurred over four years ago. Nevertheless, Plaintiff waited until October, to file his complaint, months after the statute of limitations had run. As a result, Plaintiff's RICO claim is barred by the statute of limitations, and the Complaint should be dismissed with prejudice. Even if the Complaint was not barred by the statute of limitations (and it is), Plaintiff's general allegation that Trump has engaged in acts of mail fraud fails to meet the threshold RICO requirement of a "racketeering activity." It is black letter law that mere "seller's talk," "sales puffery" or "puffing" cannot support claims for wire and mail fraud. Nevertheless, Plaintiff attempts to base his claims on advertisements containing vague, generalized and subjective statements concerning Trump University. For instance, Plaintiff alleges that Trump or Trump University circulated marketing materials stating: With the support from "our Team of Trump Experts you'll have what you need to succeed!" "Learn from the Master" "I can turn anyone into a successful real estate investor, including you" "Do YOU have What It Takes to Be My Next Apprentice?" "We'll give you the best training" MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

7 Case :-cv-0-gpc-wvg Document - Filed // Page of Trump University is of "Ivy League quality rivaling Wharton Business School." These statements are mere puffery; they are not acts of mail and wire fraud as a matter of law. As set forth herein, this action should be dismissed, with prejudice, because it constitutes impermissible claim splitting; it is time barred; and sales puffing does not rise to the mail and wire fraud required for a RICO claim. A. Procedural History II. PLAINTIFF'S ALLEGATIONS Three years and seven months ago, on April 0,, a class action was filed by Plaintiff's counsel involving the same parties, the same transaction and events, and the same facts, which is currently proceeding as Makaeff, et al. v. Trump University, LLC, et al. Case No. :-cv-000 (hereinafter, the "Initial Case"). (Dkt No..) After filing the Initial Case, the class plaintiffs amended their complaint three more times. The Initial Case asserts fourteen causes of action against Trump and others, including unfair business practices and misleading advertisement, deceptive practices in violation of the Consumers Legal Remedies Act, fraud, misrepresentation, and breach of contract, among other claims. (Initial Case Dkt. No..) On September,, Plaintiffs filed a Motion for Class Certification, which has been fully briefed by the parties. (Initial Case Dkt. Nos.,,.) However, days before the hearing on the Motion for Class Certification and one year after the deadline for filing amended pleadings, on August,, the class plaintiffs sought a fifth bite at the apple, and moved to amend the final Courtordered deadline to seek leave to amend their complaint again. (Initial Case Dkt. Although Trump disputes the statements alleged in those filings, Trump requests that the Court take judicial notice of the filings made by the class plaintiffs in Makaeff, et al. v. Trump University, LLC, et al. Case No. :-cv-000. Hereinafter, citations to entries in the Initial Case Docket will be identified as "Initial Case Dkt." MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

8 Case :-cv-0-gpc-wvg Document - Filed // Page of No..) The proposed Fourth Amended Complaint sought to add the civil RICO claim that is the subject of this action, and contained virtually identical allegations to those found in this Complaint. Indeed, the same communications/transactions on which plaintiffs purported to base their mail and wire fraud claims in the Fourth Amended Complaint are alleged in this Complaint. (Compare Complaint, p. with Initial Case Dkt. No., pp. -). After substantial briefing and oral argument, the Court issued an Order Denying Plaintiffs' Motion to Amend the Scheduling Order, which denied plaintiffs' request to file a Fourth Amended Complaint. (Initial Case Dkt. No..) The Court held that plaintiffs had not shown that they were diligent in seeking leave to amend, and that it was "clear to the Court that Plaintiffs have failed to make any adequate showing of 'good cause' why the Amended Scheduling Order" should be amended to allow plaintiffs to assert a RICO claim. (Initial Case Dkt. No..) Undetered by the Court's order denying leave to amend, counsel for plaintiffs in the Initial Case ignored the Court's Order, changed the named plaintiff to Art Cohen, split the claims, and filed this action asserting a single cause of action for Civil RICO based on the same facts and circumstance alleged in the Initial Case. B. Plaintiff's Allegations Fail To State A RICO Claim Like the Initial Case, this class action arises from Plaintiff's alleged participation in real estate investing seminars or workshops offered by an entity named "Trump University." (Complaint T.) Plaintiff alleges that he attended a Preview Live Event on April, 0. (Complaint.) Based on unidentified "misrepresentations" and/or "omissions" that he would receive Trump's "real estate secrets," Plaintiff alleges that he then purchased the Foreclosure Real Estate Retreat, which he attended from May -, 0. Id. Thereafter, he purchased the Gold Elite program on May, 0. Id. Over four years later, Plaintiff filed this complaint containing a single RICO claim based on mail and wire fraud. Although Plaintiff acknowledges that Plaintiff attended real estate siminars MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS ev

9 Case :-cv-0-gpc-wvg Document - Filed // Page of and mentorships (Complaint ill & ), Plaintiff claims that he was allegedly duped by the title "Trump University" and believed it was a traditional "University." (Complaint.) Plaintiff also alleges that he would not have attended the seminars if he had known that he was not going to have access to Trump's real estate investing "secrets." (Complaint.) However, Plaintiff does not allege exactly what statements he relied upon, the content of such statements, when the alleged statements were made, or in what format the alleged statements were made. As demonstrated below, Plaintiff's RICO claim is timed barred, and the above-referenced marketing materials cannot be used to state a RICO claim as a matter of law. III. ARGUMENT A. Plaintiff's Complaint Constitutes Impermissible Claim Splitting. "The doctrine of claim splitting bars a party from subsequent litigation where the 'same controversy' exists. The 'main purpose behind the rule preventing claim splitting is to protect the defendant from being harassed by repetitive actions based on the same claim.'" Single Chip Sys. Corp. v. Intermec IP Corp., F. Supp. d, (S.D. Cal. 0) (Internal citations omitted). Although the doctrine of claim splitting is an aspect of res judicator, unlike res judicata, it does not require a final judgment on the merits of the first filed suit. Id. Moreoever, the doctrine of claim splitting is especially applicable where the plaintiff seeks to ignore an order denying leave to amend and files a separate suit based on the same transaction. Adams v. California Dep't of Health Services, F.d (th Cir. 0) (affirming the district court's dismissal of a second filed duplicative suit after leave to amend had been denied in previously filed action); Biogenex Laboratories, Inc. v. Ventana Medical Systems, Inc., 0 WL (N.D. Cal. August, 0) (dismissing action filed after plaintiff failed to show good cause and diligence in seeking an amendment in the previously filed action). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

10 Case :-cv-0-gpc-wvg Document - Filed // Page of In Adams v. California Dep't of Health Services, F.d, the plaintiff sought leave to amend the complaint in the first suit, which the district court rejected as untimely and lacking good cause. Id. at. The plaintiff then filed a second suit (while the first suit was pending) which the district court dismissed with prejudice. The Ninth Circuit affirmed the district court's dismissal, holding that the second suit was duplicative and constituted impermissible claim splitting. Here, it cannot be denied that this case meets the applicable res judicata factors for claim splitting. In the Ninth Circuit, courts consider the following factors for determining whether successive suits involve claim splitting: "() whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; () whether substantially the same evidence is presented in the two actions; () whether the two suits involve infringement of the same right; and () whether the two suits arise out of the same transactional nucleus of facts." Single Chip Sys. Corp. v. Intermec IP Corp., F. Supp. d, 0- (S.D. Cal. 0). "Although not one single factor is determinative of whether a successive suit would be barred under res judicata principles, whether the 'same transactional nucleus of facts' exists is the most important factor in the analysis." Id. at. Here, Plaintiff's own Notice of Related Cases demonstrates that this action and the Initial Case involve the same transaction, the same parties, the same nucleus of facts, and the same rights. Indeed, the very acts alleged as the predicate acts for Plaintiff's RICO claim are the acts alleged as the basis for plaintiffs' fraud and misrepresentation claims in the Initial Case. Plaintiff's Notice of Related Cases confirms that this is so, as it states: The action identified below [the Initial Case] involves the same parties, is based on similar claims, involves the same transactions and events, and involves substantially the same facts, and many similar questions of law. (Dkt. No..) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

11 Case :-cv-0-gpc-wvg Document - Filed // Page of A review of the Complaint in this action and the Third Amended Complaint in the Initial Case, reveals that the exact same evidence will be required to litigate both disputes as both actions are based on the same alleged "scheme" concerning the marketing of Trump University. Although the Complaint involves claims of mail and wire fraud, the fraud claims at issue in both actions are identical and are based upon the same alleged representations. Thus, the applicable res judicata factors for claim splitting are met, and this action must be dismissed with prejudice. It is of no consequence that the named Plaintiff in this action is different than the named plaintiffs in the Initial Case because the parties are in privity. Parties are in privity for claim preclusion when the non-party is adequately represented by a party with the same interests. Taylor v. Sturgell, U.S. 0, (0) ("Representative suits with preclusive effect on nonparties include properly conducted class actions..."); Hooker v. Simon, WL (E.D. Cal. Sept., ) ("A class member of a previous class action is bound by the judgment in the class action. Judgments in a class action are binding on all the members of a class and those who may become members of a class.") (citing L.A. Unified School District v. L.A. Branch NAACP, F.d, (th Cir. ). In Waterfall Homeowners Association v. Viega, Inc., F.R.D., (), attorneys who had brought a class action with one named plaintiff filed another class action on behalf of the same class against the same defendants with different named plaintiffs. In dismissing the second filed case because it violated the prohibition against claim splitting, the Court stated: The Court rules that the Adams anti-claim-splitting rationale applies in the present context, at least as against the Uponor Defendants. In such cases, a defendant is forced to defend duplicative class actions simultaneously. Plaintiffs may pursue their claims here individually (though they may not then join a class in a case with duplicative claims), but they may not make Defendants defend a duplicative class action, at least not in the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

12 Case :-cv-0-gpc-wvg Document - Filed // Page of way they have done so here. Although two groups of attorneys may bring duplicative class actions with different named plaintiffs in a race towards certification, here, the same group of attorneys has brought the duplicative actions, obviating the concerns in the contrary example where different named plaintiffs and their attorneys are competing for bonuses and attorney's fees, respectively, via the race to certification. Plaintiffs' attorneys are of course not adverse to themselves, and insofar as they might argue that their different sets of named plaintiffs have adverse interests in separately prosecuting the duplicative actions because they are competing for class representative bonuses, it is the attorneys themselves who have (potentially unethically) created this direct conflict of interests between their own clients in the present matter. Id. at. (Emphasis added.) Here, both cases are class actions, and the named Plaintiff in this action is a member of the class alleged in the Initial Case. Moreoever, the Plaintiff in this action and the plaintiffs in the Initial Case seek to form the same class, are represented by the exact same counsel and seek to base their claims on the same alleged facts. Thus, Plaintiff is adequately represented in the Initial Case and his interest is being adequately addressed by the named plaintiffs in the Initial Case. Because the Plaintiff's interests and those of the class are being represented by the plaintiffs in the Initial Case by the same counsel, and the Initial Case involves the same facts and fraud claims, this action constitutes impermissible claim splitting and must be dismissed with prejudice. Additionally, the Court should reject any attempt by Plaintiff to consolidate this action with the Initial Case. The Court has already determined that there was no good cause for the amendment and that, having waited over three years to do so, the plaintiffs in the Initial Case were not diligent in seeking leave to amend. Allowing this action to proceed or allowing this action to be consolidated with the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS ev

13 Case :-cv-0-gpc-wvg Document - Filed // Page of Initial Case would render the Court's order a nullity and reward Plaintiffs attempt to circumvent the rules relating to the amendment of pleadings. Russ v. Standard Ins. Co., 0 F. d, 0 (th Cir. ) (consolidation should be denied if plaintiff is using "the tactic of filing two substantially identical complaints to expand the procedural rights he would have otherwise enjoyed"). In addition, allowing consolidation would be highly prejudicial and unfair to Trump because, among other things, plaintiffs will likely argue that claims, which are currently time barred as a matter of law, should to relate back to filing of the Initial. Case. Plaintiffs should not be rewarded for their lack of diligence and dilatory conduct. Accordingly, the Complaint should be dismissed with prejudice. B. Plaintiffs Complaint Must Be Dismissed Under Rule (b)(). A motion to dismiss is proper under Rule (b)() when the pleadings fail to state a claim upon which relief can be granted. Fed. R. Civ. P. (b)(). Pleadings fail to state a claim upon which relief can be granted when there is a "lack of a cognizable legal theory" or when there is an "absence of sufficient facts alleged under a cognizable legal theory." See Balistreri v. Pacifica Police Dep't, 0 F.d, (th Cir. ) (citation omitted). A (b)() motion to dismiss can be used when the plaintiff has included allegations in the complaint which, on their face, disclose some absolute defense or bar to recovery. Weisbuch v. County of Los Angeles, F.d, n. (th Cir. ). Indeed, a plaintiff can plead itself out of court by pleading details that show it has no legal claim. Id.; Bender v. Suburban Hosp., Inc., F.d, (th Cir. ) ("while notice pleading does not demand that a complaint expound the facts, a plaintiff who does so is bound by such exposition."). The Court is not required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Id.; see Clegg v. Cult Awareness Network, F.d, - (th Cir. ); McGlinchy v. Shell Chem. Co., F.d 0, (th Cir. ) (conclusory allegations without MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

14 Case :-cv-0-gpc-wvg Document - Filed // Page of more are insufficient to defeat a motion to dismiss for failure to state a claim). As the Supreme Court reiterated, "a plaintiffs obligation to provide the 'grounds' of his `entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 0 U.S., (0) (citations omitted); see also Ashcroft v. Iqbal, S.Ct., (0) ("Our decision in Twombly expounded the pleading standard for 'all civil actions'..."). Not only must a plaintiff allege specific facts, but it must allege facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 0 U.S. at 0 (emphasis added). The Court need not assume that a plaintiff can prove facts different from those alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, U.S., (). As discussed below, Plaintiffs RICO claim is barred by the statute of limitations, and Plaintiff has failed to state a claim against Trump that is plausible on its face.. Plaintiff's RICO Claim Is Barred By The Statute Of Limitations. All civil RICO claims are governed by the four-year statute of limitations set forth in the Clayton Act. Agency Holding Corp. v. Malley-Duff & Associates, Inc., U.S. () ("Appropriate statute of limitations to be applied in RICO civil enforcement actions was four-year statute of limitations applicable to Clayton Act civil enforcement actions..."); Rotella v. Wood, U.S., (00) (Holding that the clock begins to tick on a RICO claim when the plaintiff knew or should have known of his injury.). Here, Plaintiff's allegations demonstrate that his RICO claim is time barred. Plaintiff alleges that the purported representations were made in spring of 0, that he attended the Foreclosure Real Estate Retreat in May, 0, and that he purchased the Gold Elite program on May, 0. (Complaint T.) As an attendee of the seminars in May 0, Plaintiff would have known whether or not MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

15 Case :-cv-0-gpc-wvg Document - Filed // Page of he had obtained access to Trump's real estate investing "secrets" and would have known that Trump University was not a traditional four-year "University." Thus, all of the predicate acts underlying Plaintiffs RICO claim occurred over four years ago, in May 0. Rotella v. Wood, U.S. at ; Grimmett v. Brown, F.d 0, (th Cir. ) ("[T]he civil RICO limitations period begins to run when a plaintiff knows or should know of the injury that underlies his cause of action. The plaintiff need not discover that the injury is part of a 'pattern of racketeering' for the period to begin to run.") (Internal citations omitted.). Nevertheless, Plaintiff waited until October to file his complaint, long after the statute of limitations had run. As a result, Plaintiffs RICO claim is barred by the statute of limitations, and the Complaint should be dismissed with prejudice. In addition, Plaintiffs class allegations also reveal that the claims of the proposed class are barred by the statute of limitations. In paragraph, Plaintiff alleges that "[t]he proposed Class consists of all persons who purchased Live Events from Trump University throughout the United States from January, 0 to the present." As the four year statute of limitations applies to RICO claims, any claims predating October, 0 are barred as a matter of law.. Plaintiff Failed To Allege Any Actionable Racketeering Activity By Trump. "Racketeering activity" is defined as any predicate act indictable under various criminal statutes. See U.S.C. (). Although Plaintiff makes vague and conclusory allegations that Trump has committed alleged offenses of U.S.C. (mail fraud) and (wire fraud), when one examines the purported advertisments identified in the Complaint, such statements cannot be used to state claims for mail and wire fraud as a matter of law. It is black letter law that mere "seller's talk," "sales puffery" or "puffing" cannot support claims for wire and mail fraud. Cnty. of Marin v. Deloitte Consulting LLP, F. Supp. d 0, (N.D. Cal. ) ("The Court finds MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

16 Case :-cv-0-gpc-wvg Document - Filed // Page of that the representations are highly subjective, generalized statements of the superiority of Deloitte's qualifications made in a sales context. As such, they are "puffery" and not quantifiable, actionable misstatements that can form the basis of a mail fraud claim."); In re All Terrain Vehicle Litig., F. Supp., (C.D. Cal. ) ("To the extent that the slogans do make affirmative representations, the representations are mere sales puffing and, therefore, are not actionable RICO mail or wire fraud."); Williams v. Aztar Indiana Gaming Corp., F.d, (th Cir. 0) (holding that "sales puffery" cannot constitute mail fraud to support RICO claim); Edgenet, Inc. v. GS, AISBL, F.Supp.d, (E.D.Wis. ) ("Statements regarding the ability of a business to meet clients' needs are completely subjective" and cannot support a RICO fraud claim.); Corley v. Rosewood Care Center, Inc. of Peoria, F. d 0, 0-0 (th Cir. 0) (affirming summary dismissal of RICO claim predicated on mail fraud partly on grounds that statement of providing "high quality" service "comes under the category of sales puffery upon which no reasonable person could rely"); Edmunson v. Procter & Gamble Co., WL 0, at * (S.D. Cal. Sept., ) (where "the alleged superiority representation is [not] quantifiable," "such subjective representations of product superiority are mere puffery."). In County of Marin, F. Supp. d 0, the plaintiff asserted RICO claims based on mail fraud. Like Plaintiff in this case, the plaintiff in County of Marin alleged that he had been induced to enter into a license agreement by fraudulent representations that defendant: was "uniquely qualified" had "deep experience" "assembled a highly skilled and experienced" team had "experienced consultants" had a "seasoned team" had a "[c]ommitment to dedicate [his] best resources" MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

17 Case :-cv-0-gpc-wvg Document - Filed // Page of had "deep bench strength" had an "experienced team that has worked together before" had "solid" references was "absolutely committed to the success of this project," and had a "winning solution, a proven implementation approach, and the strong project team needed to meet" the plaintiff's requirements. Id. at. The Court held that such allegations were insufficient to allege the predicate act of fraud for a RICO claim because the alleged representations were nothing more than sales puffery. The advertisements that Plaintiff complains of here are similarly vague, generalized and subjective statements concerning Trump University that amount to nothing more than sales puffery. Plaintiff alleges that Trump University circulated marketing materials stating: With "our Team of Trump Experts you'll have what you need to succeed!"; "Learn from the Master" "I can turn anyone into a successful real estate investor, including you" "Learn from my handpicked experts how you can profit from the largest real estate liquidation in history" "Are you My Next Apprentice" "Do YOU have What It Takes to Be My Next Apprentice?" "We'll give you the best training" and Trump University was of "Ivy League quality rivaling Wharton Business School." The above-referenced statements are vague, subjective seller's talk that every person hears daily from companies attempting to market their products. From products like "SHAM-WOW" to "KA-BOOM" to "P0-X," consumers are MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

18 Case :-cv-0-gpc-wvg Document - Filed // Page of repeatedly told that this or that product is the "best." Such statements cannot be used to support RICO claims based on fraud as a matter of law. County of Marin, F. Supp. d at 0; In re All Terrain Vehicle Litig., F. Supp. at ("To the extent that the slogans do make affirmative representations, the representations are mere sales puffing and, therefore, are not actionable RICO mail or wire fraud."). Because the purported statements contained in the materials received by Plaintiff constitute puffery, Plaintiff has not stated a predicate claim for mail or wire fraud and its RICO claim must be dismissed.. Plaintiff Has Failed To Plead Fraud With The Required Particularity "Claims for mail and wire fraud are subject to Rule (b)'s heightened pleading requirements." County of Marin, F. Supp. d at. Allegations that a defendant has violated a criminal statute are to be strictly construed, and "a defendant faced with allegations of criminal conduct is entitled to more clarity and specificity" than is required in an ordinary civil complaint. Flowers v. Continental Grain Co., F.d, (th Cir. ) (affirming dismissal of RICO action for failure to plead act of mail fraud with clarity and specificity.). A complaint alleging wire or mail fraud must state "the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation." County of Marin, F. Supp. d at. Plaintiffs Complaint fails to allege its mail and wire fraud claims with the required specificity. The only allegation relating to Plaintiff is a single sentence that "[biased on Defendant's misrepresentations and material omissions that he would receive Donald Trump's real estate secrets from his handpicked 'professors' and mentors at his 'University,'" Plaintiff purchased the Foreclosure Real Estate Indeed, statements such as "I can turn anyone into a successful real estate investor, including you", "We'll give you the best training", or "Are You My Next Apprentice?" are not statements a reasonable consumer would rely upon. McKinniss v. Sunny Delight Beverages Co., 0 WL (C.D. Cal. Sept., 0) ("Statements that amount to puffery are not actionable because no reasonable consumer relies on puffery.") (Internal citations omitted.). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

19 Case :-cv-0-gpc-wvg Document - Filed // Page of Retreat. (Complaint - ). Plaintiff does not allege exactly what statements he relied upon, who made them, the content of such statements, when the alleged statements were made, or in what format they were made. In sum, such allegations are insufficient to state a claim as a matter of law, and Plaintiff's Complaint should be dismissed. IV. CONCLUSION For the foregoing reasons Defendant Donald J. Trump respectfully requests that Plaintiffs Complaint be dismissed with prejudice. Dated: November, SHUMENER, ODSON & OH LLP By: /s/ Betty M Shumener BETTY M. SHUMENER JOHN D. SPURLING STACI M. TOMITA Attorneys for Defendant Donald J. Trump MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS cv

20 Case :-cv-0-gpc-wvg Document - Filed // Page of CERTIFICATE OF SERVICE I hereby certify that on November,, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the addresses denoted on the Notice of Electronic Filing. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November,. /s/ Betty M. Shumener Betty M. Shumener Shumener, Odson & Oh LLP Attorneys for Defendant Donald J. Trump