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Discover Bank Vs Jorden Rudolph

Case Last Refreshed: 2 weeks ago

Discover Bank, filed a(n) Breach of Contract - Commercial case represented by Sanchez, Adolfo Brandon, against Rudolph Jorden, in the jurisdiction of Greene County. This case was filed in Greene County Superior Courts District.

Case Details for Discover Bank v. Rudolph Jorden

Filing Date

July 02, 2024

Category

Contract - Debt Collection

Last Refreshed

July 04, 2024

Practice Area

Commercial

Filing Location

Greene County, IA

Matter Type

Breach of Contract

Filing Court House

District

Parties for Discover Bank v. Rudolph Jorden

Plaintiffs

Discover Bank

Attorneys for Plaintiffs

Sanchez, Adolfo Brandon

Defendants

Rudolph Jorden

Case Events for Discover Bank v. Rudolph Jorden

Type Description
Docket Event VERIFICATION OF ACCOUNT
Docket Event PETITION FILED
Docket Event CIVIL ORIGINAL NOTICE
See all events

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Ruling

DANIEL IM, AN INDIVIDUAL VS ALLEN ABRAHAM, AN INDIVIDUAL, ET AL.
Jul 11, 2024 | 23STCV28011
Case Number: 23STCV28011 Hearing Date: July 11, 2024 Dept: 49 Daniel Im v. Allen Abraham, et al. MOTION TO BE RELIEVED AS COUNSEL FOR DEFENDANTS CRAFTSCAPE CREATIONS, LLC, CRAFTSCAPE CREATIONS, INC., AND CRAFTSCAPE DESIGNS, LLC MOVING PARTY: Jilbert Tahmazian (counsel for Defendants Craftscape Creations, LLC, Craftscape Creations, Inc., and Craftscape Designs, LLC RESPONDING PARTY(S): None STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Daniel Im alleges he contracted with Defendant Craftscape Creations, Inc., for a landscaping project at his home. Plaintiff alleges Defendants demanded payments yet purposely delayed work. Plaintiff alleges he paid Defendant or related entities approximately $208,919.00 and that Defendants have completed none of the work they contracted to complete. Jilbert Tahmazian now moves to be relieved as counsel for the Craftscape Defendants. No opposition was filed. TENTATIVE RULING: Counsels Motion to be Relieved as Counsel is GRANTED on the condition that Counsel submit an Order (Form MC-053) which indicates that the next hearing will be an OSC re: Striking of Answer on 8/14/24 at 8:30 a.m. IF THE ENTITY DEFENDANTS DO NOT HAVE A NEW ATTORNEY OF RECORD BY THAT DATE, THEIR ANSWERS MAY BE STRICKEN. Moving counsel is ordered to give notice of this Ruling, as well as the mandatory Order. DISCUSSION: Motion to be Relieved as Counsel A. Legal Standard For a motion to be relieved as counsel under CCP section 284, subdivision¿(2), California Rules of Court rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP section 284(2) is brought instead of filing a consent under CCP section¿284(1) (made on the Declaration in Support of Attorneys Motion to Be Relieved as Counsel Civil form (MC-052)); (3) service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorneys Motion to be Relieved as Counsel Civil form (MC-053)).¿ (Cal. Rules of Court, rule 3.1362.)¿ The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no undue prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) B. Analysis Counsel filed Civil forms MC-051, MC-052, and MC-053 on May 15, 2024. Counsel served the moving papers on Defendants Craftscape Creations, LLC, and Craftscape Designs, LLC, by mail at 21800 Oxnard Street, Suite 640, Woodland Hills, CA 91367. (See Proof of Service.) Counsel states that it confirmed by conversation within the last 30 days that the address is current. (See MC-052, ¶ 3.) In support of withdrawal, Counsel attests that the Defendants have failed to make payments for legal fees required under the attorney employment agreement. (MC-052 ¶ 2.) As a result, representation is no longer sustainable and will result in a hardship on the firm. (Id.) Here, there is no opposition to the motion, and there is no evidence Defendants will be unduly prejudiced if Counsel is relieved at this time. IT IS SO ORDERED. Dated: July 11, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior Court FN 1 - Defendant Craftscape Creations, Inc., is not listed on the Proof of Service. However, because the three entities apparently share a common Chief Executive Officer (Allen Abraham), the court considers service on the other two Craftscape entities to have satisfied the service requirements for all three.

Ruling

RAUL RUBIO, ET AL. VS AMERICAN HONDA MOTOR COMPANY, INC., ET AL.
Jul 10, 2024 | 24TRCV00451
Case Number: 24TRCV00451 Hearing Date: July 10, 2024 Dept: 8 Tentative Ruling HEARING DATE: July 10, 2024 CASE NUMBER: 24TRCV00451 CASE NAME: Raul Rubio; Noemi Rubio v. American Honda Motors Co., Inc., et al. MOVING PARTY: Defendant, American Honda Motor Co., Inc. RESPONDING PARTY: Plaintiffs, Raul and Noemi Rubio TRIAL DATE: Not Set. MOTION: (1) Demurrer Tentative Rulings: (1) SUSTAIN with leave to amend. More than mere conclusions are required for a successful assertion of the discovery rule to overcome a demurrer based on the statute of limitations where the suit alleges an event more than four years before the suit was filed but lacks any detail on what happened thereafter and when. I. BACKGROUND A. Factual On February 2, 2024, Plaintiffs, Raul Rubio and Noemi Rubio (collectively Plaintiffs) filed a Complaint against Defendants, American Honda Motor Co., Inc., and DOES 1 through 10. On April 19, 2024, Plaintiff filed a First Amended Complaint (FAC) alleging causes of action (1) Violation of Civil Code section 1793.2(d); (2) Violation of Civil Code section 1793.2(b); (3) Violation of Civil Code section 1793.2(a)(3); and (4) Breach of the Implied Warranty of Merchantability (Civil Code §§ 1791.1, 1794, 1795.5). Defendant, American Honda Motor Co., Inc. (AHM) now files a demurrer to the FAC. B. Procedural On May 20, 2024, AHM filed its Demurrer. On June 26, 2024, Plaintiffs filed an opposition brief. On July 2, 2024, AHM filed a reply brief. II. ANALYSIS A. Legal Standard A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged. ( C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer does not admit contentions, deductions or conclusions of fact or law. ( Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ ( Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, [a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. ( Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿ B. Discussion Preliminarily, this Court notes that Plaintiffs opposition brief does not argue against AHMs contention that the FAC fails to allege sufficient facts for each cause of action, but only addresses the statute of limitations issue. i. Meet and Confer Requirement The declaration of Leanna L. H. Vault, Esq., is offered in support of counsels compliance with Code of Civil Procedure section 430.41. Vault declares that she met and conferred telephonically with Plaintiffs counsel regarding the demurrer. However, Vault contends that the parties respective counsels were unable to come to an agreement regarding the grounds for which AHM brings this demurrer. (Declaration of Leanna L. H. Vault (Vault Decl.), ¶ ¶ 2-3.) Thus, this Court finds that the meet and confer requirements have been met. ii. Statute of Limitations AHM first argues that each of Plaintiffs Song-Beverly claims are time barred. T he statute of limitations for breach of implied warranty of merchantability is four years. (CCP § 337, Comm. Code § 2725, Montoya v. Ford Motor Co. (2020) 46 Cal.App.5th 493, 495; Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1306 .) A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (Comm. Code § 2725(b).) While the Song-Beverly Act supplements rather than supersedes the provisions of the UCC, the same four-year statute of limitations applies to claims brought under either statute. ( Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3rd 205, 213-24.) The discovery rule of Section 2725(2) also applies to claims under the SBA, such that a cause of action accrues not on the date of sale, but rather when the plaintiff discovers or should have discovered that the warrantor or its authorized repair facility was unable to fix the warranty-covered defects after a reasonable number of attempts. ( Krieger, supra, 234 Cal.App.3rd at p. 218.) Plaintiffs allege they purchased the 2017 Acura ILX on October 31, 2016. Plaintiffs did not file their complaint until February 7, 2024, and did not file this FAC until April 19, 2024. As such, AHM argues that on its face, all four causes of action are time-barred. The FAC attaches the Honda warranty, which includes a 5-year, 60,000-mile warranty on the powertrain, which per page 10 of the warranty booklet includes the engine and internal parts of the transmission. The FAC alleges two specific repair history events in paragraphs 22 and 23, both of which mention powertrain concerns at 16,585 and 53,701 miles respectively. Both of these events were alleged to have occurred within the first 3 years after sale, but are more than four years before this lawsuit was filed In their opposition to the demurrer, Plaintiffs argue that the statute of limitations does not begin to run from the date of the sale of the subject vehicle, but instead, is tolled. Californias discovery rule delays the start of the statute of limitations until the plaintiff discovers, or is on inquiry notice (i.e., has reason to discover) facts supporting a cause of action. ( Fox v. Ethicon Endo-Surgery, Inc . (2005) 35 Cal.4th 797, 807.) The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put [them] on inquiry or if they have the opportunity to obtain knowledge from sources open to [their] investigation. ( Id . at 808; fn. 2 provides: At common law, the term injury, as used in determining the date of accrual of a cause of action, means both a person's physical condition and its negligent cause. (emphasis in original).) The discovery rule applies to Lemon Law claims. ( Krieger, supra, 234 Cal.App.3rd at p. 218.) In order to rely on the discovery rule for delayed accrual of a cause of action, [a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. ( Fox, supra , 35 Cal.4th at 808, citing ( McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160 (superseded on limited grounds by Code Civ. Proc. § 340.8(c))(emphasis in original).) When a plaintiff reasonably should have discovered facts for purposes of the accrual of a case of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence (or, in this case, the allegations in the complaint and facts properly subject to judicial notice) can support only one reasonable conclusion. ( Broberg v. Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 921.) In this Courts view, Plaintiffs have failed to allege (as Fox and McKelvey require) the specific facts to show the time and manner of discovery and the inability to have earlier discovered the elements of their cause of action. Here, Defendant argues that the alleged Song-Beverly causes of action occurred at the time of the sale of the Subject Vehicle, on or about October 31, 2016, and that Plaintiffs did not file this action until February 7, 2024. Defendants argument ignores the discovery rule, the allegations of two powertrain complaints within the first 5 years and 60,000 miles after sale, and the conclusionary allegation that Plaintiffs did not discover Defendants wrongful conduct until shortly before filing this Complaint . . . . Plaintiffs included vague and conclusionary statements in their FAC that the discovery rule, Class Action Tolling, and the Repair Doctrine delayed the accrual of their Song-Beverly causes of action. The Class Action tolling allegations in FAC ¶27 contend that the filing of Conti v. American Honda, Case No. 2:19-cv-2160 on March 22, 2019 tolled the statute of limitations here. However, the FAC contains absolutely no details whatsoever as to whether a class was or was not certified, what type of class action was alleged there, as to what claimed defect or defect, and how that other lawsuits pendency bears on the allegations in this case. The Court thus does not base its tentative ruling on the threadbare assertion of the words class action tolling without any specific factual allegations to support that assertion such as when the purported class certification was denied which would of course ended the claimed tolling period. However, Plaintiff has provided at least some factual allegations as to the discovery rule and repair doctrine, as discussed below. The FAC alleges that AHMs Song-Beverly violations occurred, not only at the time of the sale, but also AHMs violations continued as Plaintiffs continued to experience symptoms of the defects despite Defendants representations that the various defects were repaired. (FAC, ¶ 24.) Plaintiffs further allege that they discovered Defendants wrongful conduct alleged in the FAC shortly before filing the Complaint in February of 2024, as the subject vehicle continued to exhibit symptoms of defects following AHMs unsuccessful attempts to repair them. (FAC, ¶ 26.) But the FAC lacks details as to what happened between October 18, 2019 when Plaintiffs presented the subject vehicle for a powertrain complaint and the filing of suit more than four years later. For example, the FAC lacks any allegation as to what it was that occurred shortly before suit was filed that caused them to discovery AHMs alleged wrongful conduct. The FAC fails to allege the date and circumstances of the claimed belated discovery. The FAC fails to address whether the same alleged defect or symptom reappeared on a particular date or whether that was or was not brought to AHMs or its dealers attention. Instead, the FAC in ¶24 vaguely alleges that Plaintiffs continued to experience symptoms of the defects. If Plaintiffs experienced those symptoms on or before February 8, 2020, more than four years before suit was filed, Plaintiffs will need considerably more and different allegations to avoid the bar of the statute of limitations. If plaintiffs allege they had no such symptoms for four years, until shortly before suit was filed, they will need to make more specific allegations as to how a claimed ongoing defect did not manifest symptoms for such a long period of time such that AHM should be responsible for failing to repurchase an apparently long-repaired vehicle. iii. Sufficiency of Allegations AHM also argues that Plaintiffs causes of action are not alleged sufficiently. Plaintiff alleges basic facts bearing on the core Lemon Law duty that if a manufacturer or representative does not service or repair the vehicle to conform with the express warranties after a reasonable number of attempts, the manufacturer or representative must replace the vehicle or reimburse the buyer. (Civ. Code, § 1793.2 , subd. (d).) Here, the FAC alleges that the subject vehicle suffered transmission defects and engine defects that were unable to be conformed by AHM or its representatives, but that despite this, AHM failed to replace the vehicle or reimburse Plaintiffs. (FAC, ¶ ¶ 22-26.) AHM argues that the allegations are pled in a conclusory way. The Court agrees as discussed above. The FAC is barely one step removed from a lawsuit that merely recites the elements of a cause of action by quoting CACI. Because the Court will be requiring Plaintiffs to amend its suit to plead the tolling allegations with greater specificity, the Court encourages Plaintiffs to include a greater factual development of what occurred in the subject vehicles repair history after October of 2019 to support the four causes of action that are pleaded in a vague and conclusionary way. . I II. CONCLUSION For the foregoing reasons, AHMs demurrer is SUSTAINED with 30 days leave to amend. AHM is ordered to give notice of the ruling unless notice is waived.

Ruling

MOHAMMAD ROKNIPOUR VS VAHID NIKGOO, ET AL.
Jul 12, 2024 | 23GDCV00542
Case Number: 23GDCV00542 Hearing Date: July 12, 2024 Dept: E There is no opposition as of the time of the posting of this tentative. The Courts tentative is to deny the motion, but the Court will hear argument.

Ruling

Mariam Diarra vs Carson Kelly, et al
Jul 10, 2024 | 23CV02998
23CV02998 DIARRA v. KELLY et al MOTION FOR AN ORDER DECLARING CARSON KELLEY’S JUDGMENT DEBT TO MARIAM DIARRA TO BE A COMMUNITY PROPERTY DEBT The motion is denied without prejudice. Diarra obtained a default judgment against Carson Kelly and Humanize Global, US, Inc. in the amount of $40,718.24. The underlying complaint alleged Labor Code violations, breach of contract, promise without intent to perform, and violations of Business and Professions Code section 17200. Carson Kelly is alleged to be the managing agent of Humanize Global. Diarra worked for or was contracted by Carson Kelly and Humanize Global. Diarra, now as judgment creditor, moves the court to declare that the debt of Carson Kelly is a debt of the marital community of Carson Kelly and his wife Shannon Kelly, to declare the wages of Shannon Kelly be subject to garnishment to satisfy Diarra’s judgment against Carson Kelly, and to authorize that a writ of execution issue in her name. Family Code section 902 defines debt as “an obligation incurred by a married person before or during marriage, whether based on contract, tort, or otherwise.” Family Code section 910, subdivision (a) states that “[e]xcept as expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or the judgment for debt.” Page 3 of 4 Diarra has not made a sufficient showing in this motion as follows: 1. Evidence of a marriage between Shannon and Carson Kelly, including the date Carson and Shannon married. The only evidence are the vague statements from counsel and Diarra in their declarations. 2. Evidence that Humanize Global US, Inc. was community property, rather than the separate property of Carson Kelly. In light of the above deficiencies, the court need not reach the merits of the motion. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 4 of 4

Ruling

URBAN COMMONS DANBURY, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL. VS CLAYDON HILL INVESTMENTS LTD, A BVI LIMITED COMPANY, ET AL.
Jul 10, 2024 | 23STCV01336
Case Number: 23STCV01336 Hearing Date: July 10, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING URBAN COMMONS DANBURY, LLC, et al., vs. CLAYDON HILL INVESTMENTS LTD, et al. Case No.: 23STCV01336 Hearing Date: July 10, 2024 Defendants Claydon Hill Investments Ltd.s, Compass Cove Assets Ltd.s, Bounty Green Assets Ltd.s, Frank Yuans, Jerome Yuans, and Norbert Yuans demurrer to Plaintiffs Urban Commons Frontera, LLCs; Urban Commons Highway 111, LLCs; Urban Commons Anaheim, LLCs; Urban Commons HIDH, LLCs; Urban Commons Bayshore, LLCs; Urban Commons Continental, LLCs; UCQ Holding, LLCs; and Urban Commons Riverside Blvd, LLCs second amended complaint is overruled 1st, 2nd, 3rd, and 4th causes of action and sustained with 20 days leave to amend as to the 5th and 6th causes of action. Defendants Claydon Hill Investments Ltd. (Claydon Hill), Compass Cove Assets Ltd. (Compass Cove), Bounty Green Assets Ltd. (Bounty Green), Frank Yuan (Frank), Jerome Yuan (Jerome), and Norbert Yuan (Norbert) (collectively, Defendants) demur to the to the second amended complaint (SAC) of Plaintiffs Urban Commons Frontera, LLC (Frontera); Urban Commons Highway 111, LLC (Highway); Urban Commons Anaheim, LLC (Anaheim); Urban Commons HIDH, LLC (HIDH); Urban Commons Bayshore, LLC (Bayshore); Urban Commons Continental, LLC (Continental); UCQ Holding, LLC (UCQ); and Urban Commons Riverside Blvd, LLC (Riverside) (collectively, Plaintiffs) on the grounds that Plaintiffs fail to allege facts sufficient to constitute a cause of action. (Notice of Demurrer, pg. 2; C.C.P. §430.10 . ) Request for Judicial Notice Defendants 5/21/24 request for judicial notice of (1) California Secretary of State website displaying the Entity Information and History for Plaintiff Urban Commons Bayshore, LLC (Decl. of Mohammadi, Exh. A); (2) California Secretary of State website displaying the Entity Information and History for Plaintiff Urban Commons Frontera, LLC (Decl. of Mohammadi, Exh. B); (3) California Secretary of State website displaying the Entity Information and History for Plaintiff Urban Commons Highway 111, LLC (Decl. of Mohammadi, Exh. C); (4) California Secretary of State website displaying the Entity Information and History for Plaintiff Urban Commons Riverside Blvd, LLC (Decl. of Mohammadi, Exh. D); (5) California Secretary of State website displaying the Entity Information and History for Plaintiff UCQ Holdings, LLC (Decl. of Mohammadi, Exh. E); (6) Certificate of Revival for Plaintiff Urban Commons Continental, LLC, filed with the Delaware Secretary of State on August 8, 2023 (Decl. of Mohammadi, Exh. F); (7) Certificate of Revival for Plaintiff Urban Commons HIDH, LLC, filed with the Delaware Secretary of State, on August 8, 2023 (Decl. of Mohammadi, Exh. G); (8) Delaware Secretary of State website, taken on May 16, 2024, displaying the Entity Details and status for Plaintiff Urban Commons Anaheim, LLC (Decl. of Mohammadi, Exh. H); (9) redacted version of the Membership Interest Sale and Purchase Agreement between Urban Commons Bayshore, LLC and U.S. Hospitality Investments LLC, dated April 13, 2018 (Decl. of Mohammadi, Exh. I); (10) Notification Form for Director/Chief Executive Officer in Respect of Interests in Securities (Form 1) for Howard Wu filed with the Singapore Exchange on May 27, 2019 (Decl. of Mohammadi, Exh. J); (11) Form 1 for Taylor Woods filed with the Singapore Exchange on May 27, 2019 (Decl. of Mohammadi, Exh. K); (12) Notification Form for Substantial Shareholder in Respect of Interests In Securities (Form 3) for Claydon Hill Investments Ltd. (Claydon Hill), filed with the Singapore Exchange on May 28, 2019 (Decl. of Mohammadi, Exh. L); (13) Form 3 for Compass Cove Assets Limited, (Decl. of Mohammadi, Exh. M); (14) Form 3 for Claydon Hill, filed with the Singapore Exchange on August 19, 2019, filed with the Singapore Exchange on May 28, 2019 (Decl. of Mohammadi, Exh. N); (15) Form 3 for Compass Cove, filed with the Singapore Exchange on October 11, 2019 (Decl. of Mohammadi, Exh. O); (16) Form 3 for Claydon Hill, filed with the Singapore Exchange on October 29, 2019 (Decl. of Mohammadi, Exh. P); and (17) Singapore Exchange website of a Company Announcement for Eagle Hospitality REIT Management Pte. Ltd., dated March 24, 2020 and titled Request for Suspension::Mandatory (Decl. of Mohammadi, Exh. Q) is granted, but the Court does not take judicial notice of the truth of the matters asserted. Defendants 5/21/24 request for judicial notice of (1) a screenshot, taken on May 19, 2024, of the webpage: https://www.urban-commons.com/our-team/; and (2) a screenshot, taken on May 19, 2024, of the webpage: https://eagleht.com/about-the-sponsor/ is denied. Plaintiffs 6/26/24 request for judicial notice of (1) Defendant Frank Yuans Responses and Objections to Plaintiff Urban Commons Frontera, LLCs Special Interrogatories (Set One) (P-RJN, Exh. A); (2) Defendant Jerome Yuans Responses and Objections to Plaintiff Urban Commons Frontera, LLCs Special Interrogatories (Set One) (P-RJN, Exh. B); and (3) Defendant Norbert Yuans Responses and Objections to Plaintiff Urban Commons Frontera, LLCs Special Interrogatories (Set One) (P-RJN, Exh. C), is granted. Meet and Confer Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41(a).) (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. (C.C.P. §430.41(a)(3).) Defendants counsel declares that on May 15, 2024, he met and conferred with Plaintiffs counsel telephonically to discuss the instant demurrer, and the parties were unable to reach an agreement resolving the issues raised by the demurrer. (Decl. of Mohammadi ¶2.) Defendants counsels declaration is sufficient under C.C.P. §430.41(a). Therefore, the Court will consider Defendants demurrer. Procedural Background Plaintiffs filed their initial complaint on January 23, 2023. Plaintiffs filed their first amended complaint (FAC) on August 16, 2023. Plaintiffs filed the operative SAC on April 9, 2024, against Defendants alleging six causes of action: (1) promissory fraud [ against all Defendants ]; (2) breach of contract [ against Claydon Hill, Compass Cove, and Bounty Green (collectively, BVI Entities) ]; (3) conversion [ against all Defendants ]; (4) violation of Penal Code §496 [ against all Defendants ]; (5) breach of fiduciary duty [ against all Defendants ]; and (6) reformation of contract [ against all Defendants ]. Defendants filed the instant demurrer on May 21, 2024. Plaintiffs filed their opposition on June 26, 2024. Defendants filed their reply on July 2, 2024. Summary of Allegations Plaintiffs allege this action arises from a failed real estate venture. (SAC ¶14.) Plaintiffs allege they were formerly the beneficial owners of hotel properties, each itself held by a subsidiary holding company. (SAC ¶14.) Plaintiffs allege in 2018, each Plaintiff entered into separate Membership Interest Sale and Purchase Agreements, for the purpose of selling their beneficial ownership of the hotel properties to U.S. Hospitality Investments LLC (USHI), effectively transferring ownership of the underlying hotels to USHI in exchange for compensation totaling approximately $440 million. (SAC ¶15.) Plaintiffs allege pursuant to the terms of these 2018 Membership Interest Sale and Purchase Agreements, each Plaintiff received a portion of the compensation for making the sale in cash, and a portion in the form of a Deferred Payment Obligation (DPO) to be paid at a later date. (SAC ¶16.) Plaintiffs allege under the terms of the 2018 sale, the DPO payable to each Plaintiff, to be paid by USHI to Plaintiffs at some future date, collectively totaled $131,813,141. (SAC ¶16.) Plaintiffs allege on or about April 25, 2019, USHI entered into a Securities Purchase Agreement, by which it agreed to sell its ownership in each of the 8 hotel properties to Eagle Hospitality Real Estate Investment Trust (Eagle Hospitality), a REIT that was preparing to have an Initial Public Offering of its shares on the Singapore Exchange in May 2019. (SAC ¶17.) Plaintiffs allege this transaction valued the eight hotel properties at approximately $584 million, and in exchange for selling these hotel properties to Eagle Hospitality, along with certain other assets not at issue in this litigation, USHI was to receive $30 million in cash, with the remainder of the consideration to be paid in the form of Eagle Trust stock, which was to be issued as part of Eagle Trusts upcoming IPO. (SAC ¶18.) Plaintiffs allege USHIs initial plan was to use this cash and stock to pay off the DPO then owed to Plaintiffs. (SAC ¶19.) Plaintiffs allege that around this same time, April 2019, Plaintiffs entered into discussions with the Yuans regarding a proposal they made whereby, in lieu of USHI receiving all of the newly issued Eagle Trust stock to which it was entitled under the terms of the Securities Purchase Agreement, USHI would, instead, transfer a portion of its shares (valued at $156 million) to the Yuansacting through their wholly owned and controlled BVI Entities Claydon Hill, Compass Cove, and Bounty Green. (SAC ¶20.) Plaintiffs allege that in exchange for USHI transferring these shares to the Yuans, the Yuans, acting through their wholly owned and controlled BVI Entities, agreed to assume responsibility for future repayment of the DPO owed to Plaintiffs, which by May 2019, were in excess of $130 million. (SAC ¶21.) Plaintiffs allege that to ensure that repayment to Plaintiffs of their DPO was fully secured, the Yuans offered to use the $156 million in Eagle Trust shares they were to receive from USHI as collateral. (SAC ¶22.) Plaintiffs allege that in effect, the idea was that USHI would transfer $156 million of the Eagle Trust stock it was entitled to receive to the Yuans, and, in exchange, the Yuans would agree to repay $156 million worth of the Deferred Payment Debt still owed to Plaintiffs, while simultaneously using the stock received from USHI as security for such repayment. (SAC ¶22.) Plaintiffs allege that from their perspective, this transaction had the benefit of allowing Plaintiffs to continue earning interest on the outstanding DPO at the rate of 15% per year, as provided for in the original 2018 Agreements, while eliminating the risk inherent in receiving Eagle Trust shares issued on a foreign exchange, whose future value was uncertain. (SAC ¶23.) Plaintiffs allege the Yuans benefitted by receiving the potential upside that might accrue should the value of Eagle Trust shares rise in the future. (SAC ¶23.) Plaintiffs allege that ultimately, both USHI and Plaintiffs agreed to this proposal by the Yuans, which was subsequently memorialized in a series of written agreements. (SAC ¶24.) Plaintiffs allege on or about May 15, 2019, Claydon Hill, Compass Cove, and Bounty Green, acting exclusively through the Yuans, entered into an Assignment and Assumption of Deferred Payment Obligation agreement, the purpose of which was to assign and transfer to [Claydon Hill, Compass Cove, and Bounty Green] a portion of the amounts due [to Plaintiffs] in the aggregate amount of $156,000,000. . .. (SAC ¶25, Exh. 1 at Recital D.) Plaintiffs allege Section 2 of this agreement provides that Claydon Hill, Compass Cove, and Bounty Green: hereby accept the assignment and transfer of the [$156 M] Deferred Payment Obligation, and assume the obligation to pay the Deferred Payment Obligation in accordance with the terms of the Installment Notes, in the following percentage amount of the Deferred Payment Obligation: Claydon Hill Investments LTD25.85%, Bounty Green Assets LTD14.15%, and Compass Cove Assets Limited60%. (SAC ¶26.) Plaintiffs allege Section 4 of this agreement provides that: [a]s consideration for [Claydon Hills, Compass Coves, and Bounty Greens] assumption of the [$156 M] Deferred Payment Obligation, [USHI] agrees that it shall direct the escrow agent for the initial proceeds of the IPO to pay to [the BVI Entities] from the escrow an amount equal to the [$156 M] Deferred Payment Obligation in the following percentage amounts: Claydon Hill Investments LTD US$40,326,000.00, Bounty Green Assets LTD- US$22,074,000.00, and Compass Cove Assets Limited 93,600,000.00. (SAC ¶27.) Plaintiffs allege that to effectuate the transfer of Eagle Trust stock to the Yuans, on May 16, 2019, USHI executed Escrow Instructions, by which it instructed that the Eagle Trust shares to which it was otherwise entitled be transferred to various accounts controlled by the Yuans at UBS Bank as follows: $40,452,000 worth of shares to Claydon Hill; $22,143.000 worth of shares to Bounty Green; and $93,891,000 worth of shares to Compass Cove. (SAC ¶28, Exh. 2.) Plaintiffs allege that to further document this transaction, on or about May 20, 2019, Claydon Hill, Compass Cove, and Bounty Green, acting exclusively through the Yuans, entered into a Pledge Agreement. (SAC ¶29, Exh. 3.) Plaintiffs allege on information and belief that Claydon Hill is the alter ego of Frank, Compass Cove is the alter ego of Norbert, and Bounty Green is the alter ego of Jerome in that these entities (BVI Entities) have maintained such a unity of interest and ownership with these individuals such that the separate personalities of the corporate entity and the individual defendants no longer exist and that an inequitable result would follow if they were treated as separate individuals. (SAC ¶11.) Plaintiffs allege that pursuant to this Pledge Agreement, the BVI Entities collectively agreed to pledge a total of $210 million worth of their newly-received Eagle Hospitality shares (an amount in excess of the $156 million worth of shares transferred from USHI) as collateral to ensure repayment of the DPO owed to Plaintiffs (Pledged Shares). (SAC ¶30.) Plaintiffs allege This Pledge Agreement provided, in section 2, that: until all sums due under the [Deferred Payment Obligation] have been paid in full, and all of [Claydon Hill, Compass Cove, and Bounty Green]s obligations under this Agreement have been performed, [Claydon Hill, Compass Cove, and Bounty Green] will not, without [Plaintiffs] prior written consent (i) sell, assign or transfer, or attempt to sell, assign or transfer, any of the [Pledged Shares . . .]; or (iii) suffer or permit to continue on any of the [Pledged Shares] during the term of this Agreement, an attachment, levy, execution or statutory lien. (SAC ¶31.) Plaintiffs allege the Eagle Trust IPO took place on May 24, 2019, and Plaintiffs are informed and believe that on or about that date, Claydon Hill, Compass Cove, and Bounty Green collectively received more than $210,000,000 worth of Eagle Trust shares, including the $156 million worth of shares that would have otherwise gone to USHI for the benefit of Plaintiffs, but which USHI transferred to the Yuans, acting through Claydon Hill, Compass Cove, and Bounty Green. (SAC ¶32.) Plaintiffs allege on or about November 5, 2019, Claydon Hill, Compass Cove, and Bounty Green, acting exclusively through the Yuans, entered into a First Amendment Pledge Agreement, whereby the Yuans, acting through the BVI Entities, reaffirmed their obligations to Plaintiffs under the original Pledge Agreement and further identified and pledged to Plaintiffs the UBS Accounts purportedly holding the Pledged Shares. (SAC ¶33, Exh. 4.) Plaintiffs allege this agreement provided, inter alia, that until all of the Yuans obligations to repay the DPO owed to Plaintiffs had been completed, all Collateral will continue to be held in Pledge Under this Agreement. (SAC ¶33, Exh. 4.) Plaintiffs allege that notwithstanding that the Yuans repeatedly represented to Plaintiffs that they would hold the Pledged Shares to secure repayment of the DPO owed to Plaintiffs, and that the Pledged Shares would not be sold without Plaintiffs knowledge or consent (or without using the proceeds from such sales to pay the DPO owed to Plaintiffs), Plaintiffs are informed and believe that soon after entering into the original Pledge Agreement in May 2019, Defendants began selling the Pledged Shares, and using the proceeds from such sales for their own personal benefit, and not to pay the DPO owed to Plaintiffs. (SAC ¶34.) Plaintiffs allege on information and belief that between the time they received the Pledged Shares and March 2020, the Yuans (acting through the BVI Entities), without the authorization or consent of Plaintiffs, sold the majority of the Pledged Shares through the Singapore Exchange. (SAC ¶35.) Plaintiffs allege on information and belief that the proceeds from such sales were used for the Yuans personal benefit and not to pay the DPO owed to Plaintiffs. (SAC ¶35.) Plaintiffs allege on information and belief that Frank, Jerome, and Norbert (collectively, Yuans) were engaged in the following activities vis-à-vis the BVI Entities that they owned and controlled, rendering the alter ego doctrine applicable: (1) Failure to adequately capitalize the BVI Entities; (2) Treatment of the BVI Entities assets as their own; (3) Commingling of funds and other assets and the unauthorized diversion of the BVI Entities funds or assets for other than the BVI Entities Defendant uses to the detriment of creditors; (4) Failure to maintain minutes or adequate records; (5) Disregard of legal formalities; (6) Representations that the Yuans are personally liable for the BVI Entities debts; and (7) Use of the BVI Entities as a mere shell, instrumentality, or conduit for a single venture. (SAC ¶12.) Summary of Demurrer Defendants demur to the 1st, 2nd, 3rd, 4th, 5th, and 6th causes of action in the SAC on the basis the causes of action fail to state facts sufficient to constitute causes of action against Defendants. (Demurrer, pg. 3.) Failure to State a Cause of Action Promissory Fraud (1st COA) The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. ( Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) Promissory fraud is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. ( Id. ) Plaintiffs allege that [b]eginning in or about April 2019 and continuing thereafter, the Yuans made a series of promises to Plaintiffs regarding how the Pledged Shares would be handled, including that the Pledged Shares would be held as security for repayment of the DPO, as defined herein, that the Pledged Shares would not be sold without Plaintiffs knowledge or consent, and that any proceeds from the sale of the Pledged Shares would be used exclusively to repay the DPO owed to Plaintiffs that the Yuans, acting through the BVI Entities, had agreed to assume. (SAC ¶37.) These representations are also borne out in the relevant agreements themselves, which prohibited defendants from selling, assigning or transferring any of the Pledged Shares, without Plaintiffs prior written consent, until the DPOs had been fully repaid. (SAC ¶50.) Plaintiffs allege that Defendants did not intend to perform these promises when they were made, and subsequently sold off the majority of the Pledged Shares without Plaintiffs knowledge or consent and used the proceeds for their own personal purposes rather than to pay off the DPO. (SAC ¶¶38, 41.) Plaintiffs have adequately pled their claim of promissory fraud. With regard to Defendants argument that Plaintiffs cause of action is barred by the statute of limitations, Plaintiffs claims are not clearly and affirmatively time barred on the face of the pleading. Here, Plaintiffs allege on information and belief that the soon after entering into the original Pledge Agreement in May 2019, Defendants began selling the Pledged Shares, and using the proceeds from such sales for their own personal benefit (SAC ¶34); and that between the time they received the Pledges Shares and March 2020, [they] . . . sold the majority of the Pledged Shares through the Singapore Exchange. (SAC ¶35.) A complaint alleging that the offenses at issue began at a date unknown to Plaintiffs is not subject to demurrer on statute of limitations grounds since such a complaint does not reveal on its face that it is barred by the statute of limitations. ( Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25.) Accordingly, Defendants demurrer to Plaintiffs 1st cause of action is overruled. Breach of Contract (2nd COA) With regard to Defendants argument that Plaintiffs cause of action is barred by the statute of limitations, Plaintiffs claims are not clearly and affirmatively time barred on the face of the pleading. Here, Plaintiffs allege on information and belief that the soon after entering into the original Pledge Agreement in May 2019, Defendants began selling the Pledged Shares, and using the proceeds from such sales for their own personal benefit (SAC ¶34); and that between the time they received the Pledges Shares and March 2020, [they] . . . sold the majority of the Pledged Shares through the Singapore Exchange. (SAC ¶35.) A complaint alleging that the offenses at issue began at a date unknown to Plaintiffs is not subject to demurrer on statute of limitations grounds since such a complaint does not reveal on its face that it is barred by the statute of limitations. ( Union Carbide Corp. , 36 Cal.3d at pg. 25.) Accordingly, Defendants demurrer to Plaintiffs 2nd cause of action is overruled. Conversion (3rd COA) Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiffs ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages. ( Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) To maintain a claim for conversion, [i]t is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. ( Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507.) It is well settled in California that shares of corporate stock are subject to an action in conversion and it is not necessary that possession of the certificate evidencing title be disturbed. ( Mears v. Crocker First National Bank (1948) 84 Cal.App.2d 637, 644.) Instead, it is sufficient that there is interference with the owners free and unhampered right to dispose of property without limitations imposed by strangers to the title. ( Id. ) Plaintiffs sufficiently allege that Defendants were required to pledge $210 million worth of Eagle Trust stock to secure their repayment of the DPOs owed to Plaintiffs. (SAC ¶30.) This Pledged Share amount is reflected in both the original May 20, 2019 Pledge Agreement, and the November 5, 2019 First Amendment Pledge Agreement, both of which are attached as exhibits to the SAC. ( See SAC at Exhs. 3, 4 at fourth Recital.) Accordingly, Defendants demurrer to Plaintiffs 3rd cause of action is overruled. Violation of Penal Code §496 (4th COA) A violation of Penal Code §496(a) requires that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (iii) the defendant received or had possession of the stolen property. ( Switzer v. Wood (2019) 35 Cal.App.5th 116, 126.) Penal Code § 484(a) defines the crime of theft: Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. Plaintiffs sufficiently identify the Pledged Shares at issue: Plaintiffs sufficiently allege that Defendants were required to pledge $210 million worth of Eagle Trust stock to secure their repayment of the DPOs owed to Plaintiffs. (SAC ¶30.) This Pledged Share amount is reflected in both the original May 20, 2019 Pledge Agreement, and the November 5, 2019 First Amendment Pledge Agreement, both of which are attached as exhibits to the SAC. ( See SAC at Exhs. 3, 4 at fourth Recital.) Plaintiffs sufficiently allege Defendants caused Plaintiffs to transfer to Defendants assets worth more than $131.8 million belonging to Plaintiffs. (SAC ¶64.) Plaintiffs allege Defendants have retained most or all of the funds belonging to Plaintiffs. (SAC ¶65.) Plaintiffs allege in so doing, Defendants have knowingly received and are deliberately withholding the funds belonging to Plaintiffs, knowing that Defendants have no right, title, or interest in those funds and that said funds have been stolen from Plaintiffs and/or obtained in a manner constituting theft as defined in Penal Code §496(a). (SAC ¶66.) Plaintiffs allege Defendants did so knowing the funds had been so obtained, and with the requisite intent. (SAC ¶68.) Defendants demurrer to Plaintiffs 4th cause of action is overruled. Breach of Fiduciary Duty (5th COA) To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. ( Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101.) A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is . . . duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latters knowledge or consent. ( Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29.) Plaintiffs fail to allege a fiduciary duty owed to them by Defendants as a matter of law. Plaintiffs merely allege, By virtue of their past dealings with Plaintiffs, and by virtue of entering into the Assignment and Assumption of DPO agreement, Pledge Agreement and First Amendment Pledge Agreement with Plaintiffs, Defendants assumed a fiduciary duty to protect the Plaintiffs interests in the Pledged Shares, which included the fiduciary duty to avoid taking actions that would compromise or adversely affect Plaintiffs security interest in the Pledged Shares. (SAC ¶72.) However, parties to a contract, by that fact alone, have no fiduciary duties toward one another. ( Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 654; Waverly Productions, Inc. v. RKO General, Inc. (1963) 217 Cal.App.2d 721, 732 [A mere contract or a debt does not constitute a trust or create a fiduciary relationship on which a breach of fiduciary duty claim may be based].) Accordingly, Defendants demurrer to Plaintiffs 5th cause of action is sustained with 20 days leave to amend. Reformation of Contract (6th COA) Civil Code §3399 provides that [w]hen through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. A claim for reformation of an instrument based on fraud or mistake is subject to a three-year statute of limitations, which begins to run when the plaintiff discovers, or by reasonable diligence could and should have discovered, the alleged mistake. (Civ. Code §338(d); North Star Reinsurance Corp. v. Superior Court (1992) 10 Cal.App.4th 1815, 1822.) Plaintiffs reformation of contract claim is based on the fact that both the Pledge Agreement (SAC ¶77, Exh. 3) and First Amended Pledge Agreement (SAC ¶77, Exh. 4) the Plaintiffs as Delaware limited liability companies, when in fact, five of the seven plaintiffs are California entities. Plaintiffs contend that this drafting error is the result of mutual mistake of the parties, that the parties clearly intended that this agreement apply to the Plaintiffs and that the contract can be reformed as necessary by the Court to correct this drafting error. The statute of limitations on the reformation claims accrued at the time of the execution of the agreements in May and November 2019, when Plaintiffs should have reasonably been on notice of their incorrect LLC designations. ( See SAC ¶ 77.) Because Plaintiffs filed the SAC asserting the reformation claims in 2024, over two years after the limitations period had lapsed, the reformation cause of action appears on the face is barred by the statute of limitations. Plaintiffs argue this drafting discrepancy was only recently discovered by current counsel for Plaintiffs when they entered the case in late 2023 and the SAC can be amended to clearly allege the fact that this mistake was only recently uncovered and therefore would not have accrued at a time later than the statute of limitations. Accordingly, Defendants demurrer to Plaintiffs 6th cause of action is sustained with 20 days leave to amend. Alter Ego Theory In pleading alter ego liability, a plaintiff is required to allege only ultimate rather than evidentiary facts. ( Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) Moreover, less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff. ( Burks v. Poppy Construction Co . (1962) 57 Cal.2d 463, 474. ) The SAC sufficiently alleges that the BVI Entities are the alter egos of the Yuans in that these entities have maintained such a unity of interest and ownership with these individuals such that the separate personalities of the corporate entity and the individual defendants no longer exist and that an inequitable result would follow if they were treated as separate individuals. (SAC ¶¶ 11-12.) Further, an allegation of alter ego liability is not a cause of action subject to demurrer. Accordingly, Defendants demurrer to Plaintiffs allegations of alter ego liability are overruled. Conclusion Defendants demurrer to Plaintiffs SAC is overruled as to the 1st, 2nd, 3rd, and 4th causes of action and sustained with 20 days leave to amend as to the 5th and 6th causes of action. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

Ruling

Euerle, Duane Allen vs. FCA US LLC
Jul 22, 2024 | S-CV-0052425
S-CV-0052425 Euerle, Duane Allen vs. FCA US LLC ** NOTE: telephonic appearances are strongly encouraged NOTE: Defendant has not paid advance jury fees pursuant to CCP § 631. Trial Date & Length: 12/08/25 6 day Jury Trial (Please contact Master Calendar (916) 408-6061 on the business day prior to the scheduled trial date to find courtroom availability.) Civil Trial Conference: 11/21/25 (heard at 8:30 am in Dept. 3) Mandatory Settlement Conference: 11/14/25 (heard at 8:30am; report to Jury Services) NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ON THE THURSDAY PRIOR TO HEARING DATE. REQUESTS FOR APPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMC CLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS AND PARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TO THE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.

Ruling

Subway Real Estate, LLC vs. Rosario Sabet, et al.
Jul 11, 2024 | 23CV-0202926
SUBWAY REAL ESTATE, LLC VS. ROSARIO SABET, ET AL. Case Number: 23CV-0202926 This matter is on calendar for review regarding status of default judgment. At the last hearing, Plaintiff’s counsel stated that the matter may settle. No default judgment packet has been submitted and no Notice of Settlement has been filed. The matter is continued to Tuesday, September 3, 2024 at 9:00 a.m. in Department 63 for status of default judgment or settlement. The Court expects that if the matter has not settled that Plaintiff will take the necessary steps to obtain a default judgment prior to the next hearing. No appearance is necessary on today’s calendar.

Ruling

JUAN JOSE HERNANDEZ VS FORD MOTOR COMPANY, ET AL.
Jul 09, 2024 | 24STCV10095
Case Number: 24STCV10095 Hearing Date: July 9, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING JUAN JOSE HERNANDEZ, Plaintiff, v. FORD MOTOR COMPANY, et al., Defendants. Case No: 24STCV10095 Hearing Date: July 9, 2024 Calendar Number: 14 Defendants Ford Motor Company (Ford) and Galpin Motors, Inc. dba Galpin Ford (Galpin) (collectively, Defendants) demur to the fifth and sixth claims in the Complaint filed by Plaintiff Juan Jose Hernandez (Plaintiff). The Court OVERRULES the demurrer. Background This is a Song-Beverly action. The following facts are taken from the allegations of the Complaint, which the Court accepts as true for the purposes of the demurrer. On December 15, 2021, Plaintiff entered into a warranty contract with Ford for a 2021 Ford Ranger (the Subject Vehicle). Plaintiff alleges that defects and nonconformities to warranty manifested within the warranty period. Plaintiff alleges that these defects included transmission defects and engine defects. Plaintiff filed this action on April 22, 2024, raising claims for (1) violation of Civil Code, section 1793.2, subd. (d); (2) violation of Civil Code, section 1793.2, subd. (b); (3) violation of Civil Code, section 1793.2, subd. (a)(3); (4) breach of the implied warranty of merchantability; (5) negligent repair; and (6) fraudulent inducement concealment. Defendants demurred to the Complaint on May 22, 2024. Plaintiff filed an opposition and Defendants filed a reply. Legal Standard As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. ( Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. ( E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. ( Ibid. ) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. ( Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. ( Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. ( Ibid .; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. ( Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Discussion Negligent Repair Fifth Claim In order to state a claim for negligence, a plaintiff must allege the elements of (1) the existence of a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in an injury. ( McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Damages Defendants argue that Plaintiff did not pay any out-of-pocket costs for the repair attempts because they were covered under warranty, and that, as a result, Plaintiff did not suffer any damages. However, Plaintiff does not allege this fact. Because this fact does not appear on the face of the Complaint, it is not a basis to sustain the demurrer. Economic Loss Rule [A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. ( McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 79.) Here, the Complaint does not affirmatively disclose that Plaintiffs damages are purely economic losses, and do not include property damage to the car resulting from the alleged negligent repairs. California decisional law has long recognized that the economic loss rule does not necessarily bar recovery in tort for damage that a defective product (e.g., a window) causes to other portions of a larger product (e.g., a house) into which the former has been incorporated. ( Jimenez v. Superior Court (2002) 29 Cal.4th 473, 483.) A demurrer does not lie to a portion of a cause of action. ( PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Because the face of the Complaint does not show that Plaintiffs losses from the repairs were purely economical, the economic loss rule does not compel dismissal of this claim. The Court therefore overrules the demurrer to this claim. Fraudulent Concealment Sixth Claim [T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. ( Lovejoy v. AT&T Corp. (2004) 119 Cal.App.4th 151, 157158.) A duty to disclose arises when [1] a defendant owes a fiduciary duty to a plaintiff & [2] when the defendant has exclusive knowledge of material facts not known to the plaintiff; [3] when the defendant actively conceals a material fact from the plaintiff; or [4] when the defendant makes partial representations but also suppresses some material facts. ( Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199 [internal citations and quotation marks omitted; cleaned up].) Each of the [latter] three circumstances in which nondisclosure may be actionable presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise. ( LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336337.) [S]uch a relationship can only come into being as a result of some sort of transaction between the parties. ( Id . at p. 337.) Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. ( Ibid .) Specificity Defendants argue that Plaintiff does not specifically identify the defects in question that Defendants allegedly concealed. Plaintiff alleges that Defendant [Ford] knew that vehicles equipped with the same 10-speed transmission as the Vehicle suffered from one or more defects that can cause the vehicles and their 10-speed transmissions to experience hesitation and/or delayed acceleration; harsh and/or hard shifting; jerking, shuddering, and/or juddering (Transmission Defect). These conditions present a safety hazard and are unreasonably dangerous to consumers because they can suddenly and unexpectedly affect the driver's ability to control the vehicle's speed, acceleration, deceleration, and/ or overall responsiveness of the vehicle in various driving conditions. (Complaint at p. 15:2-8.) Plaintiffs related allegations add further specificity to the defects: on September 27, 2021, Defendant issued TSB 21-2315, entitled 10R80 Harsh Engagement/Harsh Shift/Delayed Shift With or Without DTCs, which covers 2017 2020 Ford vehicles, including the Subject Vehicle. The TSB advised that Some 2017-20220 F-150 & vehicles equipped with a 10R80 automatic transmission may exhibit a harsh engagement/harsh shift/delayed shift&This may be due to incompatibility of the adaptive calibration to adapt to hardware wear-in over time. (Complaint at p. 6:23-28.) In Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (review granted), the Court of Appeal found that the following allegations of defect were adequate for a fraudulent inducement claim: The CVT is defective in that it causes hesitation from a stop before acceleration; sudden, hard shaking during deceleration; sudden, hard shaking and violent jerking (commonly known as juddering or shuddering) during acceleration; and complete failure to function, each and all of which prevent a CVT-equipped vehicle from operating as intended by the driver, especially during acceleration from a complete stop. ( Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 833834, 844, review granted February 1, 2023.) Plaintiffs allegations in this case are similar in their level to specificity to those permitted in Dhital . While the California Supreme Court has granted review in Dhital , and it is therefore not binding on the Court, it may be considered as persuasive authority. (Cal. R. Ct. Rules 8.1105 and 8.1115.) The Court does find it persuasive, barring any contrary ruling by the California Supreme Court. The Court concludes that Plaintiff has specifically alleged defects and Fords knowledge thereof. Plaintiff has specifically alleged the defects in question and that Ford knew about them. Duty to Disclose Defendants argue that Plaintiff has not alleged a duty to disclose because Plaintiff fails to plead a transactional relationship. A contractual relationship is not necessary to give rise to a buyer-seller relationship for the purposes of establishing a duty to disclose. Under California law, a vendor has a duty to disclose material facts not only to immediate purchasers, but also to subsequent purchasers when the vendor has reason to expect that the item will be resold. ( OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859 [emphasis in original]; see also Dhital , supra , 84 Cal. App.5th at p. 884 [Plaintiffs allegations against Nissan sufficient at pleading stage where plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissans authorized dealerships are its agents for purposes of sale of Nissan vehicles to consumers].) While an affirmative misrepresentation might not be repeated & a nondisclosure must necessarily be passed on. Only Smith knew what his soils engineers had found and it was unlikely that others would find out on their own. &. Under these circumstances it would be anomalous if liability for damages resulting from fraudulent concealment were to vanish simply because of the fortuitous event of an intervening resale. Ultimately in such a case it is the subsequent purchaser who is directly damaged by the initial nondisclosure. ( Barnhouse v. City of Pinole (1982) 133 Cal.App.3d 171, 192.) Here, Plaintiff alleges that he entered into a warranty contract with Ford for the Subject Vehicle. Fords warranty policy issued to Plaintiff was designed to be issued through a dealer in other words, Ford knew that the cars that it manufactured were to be resold from dealers to end users. The Court therefore cannot rule in Fords favor on this issue at the demurrer stage. Exclusive Knowledge Defendants argue that Plaintiff fails to plead that Ford had exclusive knowledge in order to establish a duty to disclose. Plaintiff alleges that Ford gained knowledge of the transmission defects through pre-production testing, pre-production design failure mode and analysis data, production failure mode and analysis data, early consumer complaints made exclusively to Ford, aggregate warranty data compiled from Fords network of dealers, testing conducted by Ford in response to consumer complaints, and repair order and parts data from Fords network of dealers. (Complaint at p. 15:26-16:9.) Plaintiff has adequately pled that Ford had exclusive knowledge which Plaintiff could not have reasonably accessed. Further, in addition to pleading ultimate facts, Plaintiff has pled evidentiary facts showing knowledge namely, the issuance of a technical service bulletin relating to the transmission issue mere months after Plaintiffs purchase. Such a service bulletin would necessarily be preceded by the collection of information, and the bulletins brief nature indicates that Ford possessed more facts which were condensed into the bulletin. While the bulletin is not a judicial admission, it is adequate to support an allegation of knowledge at the pleading stage. Economic Loss Rule Defendant argues that the economic loss rule precludes recovery in tort where a plaintiffs damages consist solely of economic loss, leaving a plaintiff with only contractual remedies. [F]raudulent inducement of contractas the very phrase suggestsis not a context where the traditional separation of tort and contract law obtains. To the contrary, this area of the law traditionally has involved both contract and tort principles and procedures. For example, it has long been the rule that where a contract is secured by fraudulent representations, the injured party may elect to affirm the contract and sue for the fraud. ( Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [internal citation and quotation marks omitted].) Tort damages have been permitted in contract cases & where the contract was fraudulently induced. In each of these cases, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm. ( Erlich v. Menezes (1999) 21 Cal.4th 543, 552 [internal citations omitted].) [C]oncealment-based claims for fraudulent inducement are not barred by the economic loss rule. ( Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 840, review granted February 1, 2023 [declining to apply economic loss rule where plaintiff pled concealment of automobile defects by manufacturer].) Accordingly, the Court does not sustain the demurrer on the basis of the economic loss rule at the pleading stage. The Court therefore overrules the demurrer to this claim.

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