Swissmex-Rapid S A De C V Vs Ferro Pagliai Et Al

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

Case Number: 21STCV18571 Hearing Date: July 9, 2024 Dept: 78 Superior Court of California ¿ County of Los Angeles ¿ Department 78 ¿ ¿ JESSE LAURICELLA , Plaintiff (s) , vs.¿ FIREFLY FABRICATIONS, LLC , et al., Defendant ( s ) .¿ Case No.:¿ 21STCV18571 Hearing Date:¿ July 9, 2024 [TENTATIVE] ORDER CONTINUING MOTION FOR SUBSTITUTION I. BACKGROUND Plaintiff Jesse Lauricella (Plaintiff) filed this action against defendants Firefly Fabrications, Justin Campbell, and Does 1 through 20 for allegations of a failure to timely make repairs and upgrades to a boat owned by Plaintiff pursuant to a contractual agreement. Plaintiffs counsel has now filed this motion seeking Matthew Thompson ( Thompson ) to be substituted as Plaintiffs personal representative because of Plaintiffs passing. The motion is unopposed. II. LEGAL STANDARD A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedents successor in interest . . . and an action may be commenced by the decedents personal representatives or, if none, by the decedents successor in interest. (Code Civ. Proc., § 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedents personal representative or successor-in-interest . (Code Civ. Proc., § 377.31.) III. DISCUSSION ¿ The person who seeks to commence or continue a pending action as the decedents successor-in-interest shall execute and file an affidavit or declaration stating: (1) the decedents name, (2) the date and place of decedents death, (3) No proceeding is now pending in California for administration of the decedents estate, (4) a copy of the final order showing the distribution of the decedents cause of action to the successor-in-interest, if the decedents estate was administered, (5) either the affiant or declarant is the decedents successor in interest or the affiant or declarant is authorized to act on behalf of the decedents successor in interest, with facts in support thereof, (6) No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding, and (7) the statements are true, under penalty of perjury. (Code Civ. Proc., § 377.32(a)(1)-(7).) Additionally, a certified copy of the decedents death certificate shall be attached to the affidavit or declaration. (Code Civ. Proc., § 377.32(c).) Here, there is no affidavit or declaration by Thompson to satisfy the requirements of CCP section 377.32; the sole declaration of Plaintiffs counsel is insufficient. IV. CONCLUSION Based on the foregoing, the motion is CONTINUED to ____________ in Dept. 78 to provide the moving party the opportunity to cure the above-noted d efect . The supplemental declaration must be filed and served no later than five calendar days prior to the hearing date. Moving Party is ordered to give notice . DATED: July 8, 2024 __________________________ Hon. Michelle C. Kim ¿ Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting . " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Case Number: 23STCV19069 Hearing Date: July 9, 2024 Dept: 74 The People of the State of California v. Ultimate Host, LLC, et al. Plaintiff People of the State of Californias Motions to Deem Matters Admitted and Requests for Monetary Sanctions (x2) BACKGROUND Plaintiff The People of the State of California (Plaintiff) filed a Complaint against Defendants Ultimate Host, LLC dba The Nightfall Group (UHL); Mokhtar Jabli (Jabli); Jungle Kerry, Inc.; 5554 Green Oak, LLC; Kirill Kirk Ayzenberg, as Trustee of the Gabriel Mark Trust dated May 19, 2021, and DOES 1-50, inclusive, asserting causes of action for public nuisance and unfair business practices. Plaintiff alleges defendants operate unlawful party houses in violation of the City of Los Angeles Short Term Rental Ordinance (STR). (Compl., ¶¶ 26-62.) On March 22, 2024, Plaintiff filed the instant Motions to Deem Requests for Admissions Admitted and Request for Monetary Sanctions directed to defendants UHL and Jabli, respectively. Neither defendant filed an opposition. LEGAL STANDARD ¿¿ Pursuant to Code of Civil Procedure section 2033.280, subdivision (a), [i]f a party to whom requests for admission are directed fails to serve a timely response&[t]he party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product[.] (Code Civ. Proc.,, § 2033.280(a).) Where a party fails to respond to requests for admissions, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. ( Id. , § 2033.280 (b).) The court shall grant a motion to deem admitted the matters specified in the requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. ( Id. , § 2033.280(c).) Finally, [i]it is mandatory that the court impose a monetary sanction ... on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated [a] motion [to deem matters admitted]. ( Id. , § 2033.280(c).) DISCUSSION Plaintiff moves for an order deeming matters referred to in two sets of Requests for Admission (RFAs) admitted. One set of RFAs was served on UHL, the other on Jabli. Because neither defendant filed an opposition, it is undisputed that Plaintiff served each with RFAs on October 5, 2023 and Defendants final deadline to respond after several extensions was February 5, 2024. (Tejeda-Rodriguez Decl., ¶¶ 4, 8- 9). Plaintiff acknowledges that Jabli served responses on February 7, 2024, but argues the responses were woefully and unjustifiably insufficient. ( Id. , ¶ 10.) The Court agrees. It is undisputed that neither Jabli nor UHL timely responded to the RFAs. Because they did not, the matters referred to in the RFAs must be deemed admitted unless (1) the untimely responses substantially complied with Code of Civil Procedure sections 2033.210, 2033.220, and 2033.230, and (2) the failure to respond was the result of mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 2033.280(a)(1).) Defendants have not substantially complied, nor have they shown mistake, inadvertence, etc. On February 7, two days after his responses were due, Jabli emailed counsel a link to a Google document. ( Id. , ¶ 10.) The documents first page, titled REQUESTS FOR ADMISSION, contained only a numbered list that enumerated eighteen single-word responses either Correct or False with a nineteenth numbered response reading: ?. ( Ibid. ) The responses are unverified. They also do not specify whether they intend to respond to the RFAs served on Jabli or served on UHL. The responses do not comply with any of the formal or substantial requirements imposed by Code of Civil Procedure sections 2033.210-2033.240. Also, because Defendants filed no opposition, they made no showing of mistake, etc. a second necessary finding for them to avoid deemed admissions. Defendants have not made either showing required by section 2033.280(c). Plaintiff is entitled to an order deeming the matters referred to in its RFAs admitted. Request for Monetary Sanctions Where a motion to deem matters admitted is granted, it is mandatory that the Court impose a monetary sanction. (See Code Civ. Proc., § 2033.280(c).) The court orders each Defendant to pay Plaintiffs counsel $720 (for a total of $1,440) in attorneys fees as discovery sanctions within 30 days. CONCLUSION The court deems admitted the matters referred to in the Requests for Admission (Set One) subject to each of the instant motions. Defendant Mokhtary Jabli is ordered to pay $720 in sanctions to Plaintiff and/or its counsel within 30 days of this order. Defendant Ultimate Host, LLC is ordered to pay $720 in sanctions to Plaintiff and/or its counsel within 30 days of this order. Plaintiff shall give notice.

Case Number: 22STCV01204 Hearing Date: July 10, 2024 Dept: 73 7/10/2024 Dept. 73 Hon. Rolf Treu, Judge presiding JAMES CHEUNG v. CHARLES CHEUNG, et al. ( 22STCV01204 ) Counsel for Plaintiff/moving party: David King (King Cheng Miller & Jin, LLP) Counsel for Defendants/opposing party: Kousha Berokim (Berokim Law) PLAINTIFFS motion for AN ORDER (1) GRANTING TERMINATING, ISSUE AND/OR EVIDENTIARY SANCTIONS AGAINST CHARLES CHEUNG AND PINNACLELGS, INC., OR ALTERNATIVELY (2) COMPELLING CHARLES CHEUNG AND PINNACLELGS, INC. TO COMPLY WITH THIS COURTS ORDER OF MARCH 26, 2024; AND (3) MONETARLY SANCTIONS AGAINST CHARLES CHEUNG, PINNACLELGS, INC. AND THEIR ATTORNEY ( filed on 05/06/24) TENTATIVE RULING Plaintiffs Motion for Sanctions against Defendants Charles Cheung and PinnacleLGS, Inc. is GRANTED in part as follows: (1) DENIED as to terminating, issue and evidentiary sanctions; (2) MOOT as to an order compelling Defendants to comply with this Courts March 26, 2024 order; and (3) GRANTED as to monetary sanctions in the amount of $4,500. Defendants Charles Cheung and Pinnacle LGS are ordered to pay the additional sanctions to Plaintiff, by and through counsel of record, in the amount of $4,500, within thirty (30) days. Defendants are also ordered to pay the prior sanctions award entered on March 26, 2024, in the amount of $4,500, within thirty (30) days. I. BACKGROUND On January 12, 2022, Plaintiff James Cheung (Plaintiff) filed this action against Defendants Charles Cheung, Wenjun Long and PinnacleLGS, Inc. Plaintiffs Complaint asserts causes of action for: (1) Dissolution of Partnership; (2) Accounting; (3) Breach of Fiduciary Duty; (4) Fraud; and (5) Breach of Contract. The Complaint alleges that this case is about the Dissolution of a Fifty/Fifty (50/50) Partnership and about an Accounting arising out of the Dissolution of that Partnership. The Partnership started off as a series of Joint Ventures that involved acquiring improved real properties that have the land value potential and that are to be demolished and developed into new multi-family projects. Plaintiff was to fund the down payment, and Defendant Charles Cheung was to fund some down payment and the monthly mortgages of the Purchase Money Loans. (Compl., ¶ 7.) On March 16, 2022, a Cross-Complaint was filed by Pinnacle Wilton LLC, Pinnacle Normandie LLC, Pinnacle LGS, Inc., Charles Cheung and Wejun Long against Cross-Defendants BB Wells Investments, Inc. and James Cheung. The Cross-Complaint asserts causes of action for: (1) Usury and (2) Quiet Title. On May 6, 2024, Plaintiff filed this Motion for Sanctions against Defendants Charles Cheung and Pinnacle LGS, Inc. seeking: · An order (a) granting terminating sanctions against Charles and PinnacleLGS, (b) striking their Answer to Plaintiffs Complaint, and (c) entering default judgment against Charles and Pinnacle LGS on Plaintiffs Complaint and their Cross-Complaint, because they failed to provide any discovery responses in response to the Courts Order granting Plaintiffs six motions to compel further responses. · In the alternative, an order granting issue sanctions against Charles and PinnacleLGS, precluding them from presenting any evidence in opposition to the claims being asserted in Plaintiffs Complaint or any evidence in support of their Cross-Complaint, and designating the following facts as established: o James and Charles were engaged in a joint venture. o That the loan made by James Cheung alleged in Cross-Complainants CrossComplaint was made in the course of and in furtherance of a partnership and joint venture between James Cheung and Charles Cheung, and is not usurious, and/or o Charles breached his fiduciary duties to James in connection with their joint venture. · In the alternative, an order granting evidentiary sanctions against Charles and Pinnacle LGS, precluding them from (a) introducing at the time of trial any evidence in support of their affirmative defenses to Plaintiffs Complaint; (b) introducing any evidence to rebut the claims being asserted against them in Plaintiffs Complaint; or (c) introducing any evidence in support of their Cross-Complaint. · Awarding Plaintiff monetary sanctions against Charles, Pinnacle LGS, and their attorney, Kousha Berokim, jointly and severally, in the amount of $7,200.00 for their misuse of the discovery process, as well as enforcing the prior sanctions award of $4,500, entered on March 26, 2024, payable within ten days of the hearing on this Motion. · On March 26, 2024, this Court granted Plaintiffs six discovery motions against Charles and Pinnacle LGS, requiring that: o (a) Charles serve verified responses to Plaintiffs (i) Demand for Production of Documents, Set One, and (ii) Special Interrogatories, Set One, within thirty days, and pay $500.00 in monetary sanctions. Charles and his attorney have ignored the Courts order. o (b) Pinnacle LGS serve verified responses to Plaintiffs (i) Demand for Production of Documents, Set One, (ii) Special Interrogatories, Set One, (iii) Requests for Admission, Set One, and (iv) Form Interrogatories, Set Two, within thirty days, and pay $4,000.00 in sanctions. Pinnacle LGS and its attorney have also ignored the Courts Order. · Code of Civil Procedure sections 2023.010 and 2023.030 permits a court to award terminating, issue, evidentiary, and/or monetary sanctions against any party that disobeys a court order. · Plaintiff has incurred over $7,200.00 in legal fees in bringing this Motion Defendants filed an opposition, arguing: · Defendants have now served verified discovery responses without objections, thus the motion should be denied. · Plaintiff also failed to meet and confer prior to filing this motion. Plaintiff filed a reply asserting: · Defendants excuse for violating the Courts order for sixty days has no merit. Defendants simply assert that Charles was in Southeast Asia. · Plaintiff was not required to meet and confer prior to filing this motion. · The discovery responses that Defendants served are not code compliant. II. ANALYSIS A. Legal Standard A misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) A misuse of the discovery process also includes disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g).) A court may impose issue sanctions, evidence sanctions, or monetary sanctions against a party engaging in misuse of the discovery process. (Code Civ. Proc. § 2023.030.) Where an issue sanction is imposed, designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (b).) An issue sanction may also involve any party engaging in misuse of the discovery process from supporting or opposing designated claims or defenses. (Code Civ. Proc., § 2023.030, subd. (b).) An evidence sanction involves an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).) A terminating sanction may be imposed by the court by one of the following orders: (1) an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) an order staying further proceedings by that party until an order for discovery is obeyed; (3) an order dismissing the action, or any part of the action, of that party; or (4) an order rending judgment by default against that party. (Code Civ. Proc., § 2023.030, subd. (d)(1)-(4).) The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. ( Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. ( Ibid .) [C]continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. ( Ibid .) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. ( Ibid .) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. ( Biles v. Exxon Mobil Corp . (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. ( Ibid .) A decision to order terminating sanctions should not be made lightly. ( Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial courts order to impose terminating sanctions will be reversed only if it was arbitrary, capricious, or whimsical. ( Ibid .) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. ( Los Defensores, Inc. v. Gome z (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions are warranted when a partys lack of compliance with the discovery process has caused the opposing party prejudice. ( Doppes v. Bentley Motors, Inc ., supra , 174 Cal.App.4th 967, 989.) B. Discussion Plaintiff moves for terminating, issue and/or evidentiary sanctions against Defendants on the grounds that Defendants failed to comply with the Courts March 26, 2024 Order granting Plaintiffs requests for further discovery responses. In the alternative, Plaintiff seeks an order compelling Defendants to comply with the Courts March 26, 2024 order. Plaintiff also seeks monetary sanctions. Plaintiff asserts that Defendants violated the Courts March 26, 2024 order granting Plaintiffs Motions to Compel Further Discovery Responses and Plaintiffs request for sanctions. The Court ordered compliance with discovery orders and payment of sanctions (total $4,500 against both Defendants and their counsel) to Plaintiffs counsel within 30 days. (Courts 03/26/24 Minute Order, p. 5.) However, at the time that Plaintiff filed the instant Motion, Plaintiff asserts that Defendants have failed to serve supplemental discovery responses or pay the sanctions. In opposition, Defendants argue the motion should be denied because Defendants have complied with the Courts March 26, 2024 Order. Defendants assert that on June 26, 2024, they served verified discovery responses without objections. Defendants also contend that Plaintiff should have met and conferred prior to filing this Motion, but failed to do so. In reply, Plaintiff asserts that Plaintiff was not required to meet and confer prior to filing this Motion. The Court agrees. Defendants citation to Code of Civil Procedure section 2023.010 is misplaced as it does not require the parties to meet and confer prior to filing a motion for sanctions for failing to comply with a court order. In Plaintiffs reply, he also raises arguments that Defendants supplemental responses that were served on June 26, 2024 are not code-compliant. However, since these arguments are raised for the first time in the reply, Defendants have not been afforded an opportunity to respond to these arguments. The purpose of a reply brief is to address arguments made in the Opposition; it may not be used to raise new arguments, present new authorities, or introduce new evidence. Points raised for the first time in a reply brief ordinarily will not be considered because such consideration would either deprive respondent of an opportunity to counter the argument or require the effort and delay of additional brief by permission. ( See, e.g., Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 ("Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief[.]") Thus, the Court does not address whether Defendants supplemental responses are code-compliant. The Court finds that terminating, issue and evidence sanctions are not appropriate here because Defendants have served the missing supplemental responses. However, the Court also finds that Defendants engaged in discovery abuse by delaying the supplemental responses and refusing to pay sanctions as ordered. The Court ordered that supplemental discovery responses and sanctions were due 30 days after the March 26, 2024 order was issued. Defendants had no reasonable basis for delaying the response and refusing to pay sanctions. Therefore, the Court finds that additional monetary sanctions are warranted against Defendants. The Court grants Plaintiff additional sanctions of $4,500 for 10 hours of attorney time at a rate of $450 per hour. These sanctions are imposed jointly and severally against Defendants Charles Cheung, Pinnacle LGS and their counsel. In sum, terminating, issue and evidentiary sanctions are DENIED. Because Defendants have served the missing supplemental discovery responses, the request for an order compelling Defendants to comply with the Courts order is MOOT. The Court GRANTS Plaintiffs request for monetary sanctions against Defendants Charles Cheung, Pinnacle LGS and their counsel, jointly and severally. Defendants Charles Cheung and Pinnacle LGS are ordered to pay the additional sanctions to Plaintiff, by and through counsel of record, in the amount of $4,500, within thirty (30) days. Defendants are also ordered to pay the prior sanctions award , in the amount of $4,500, entered on March 26, 2024, within thirty (30) days. II. DISPOSITION Plaintiffs Motion for Sanctions against Defendants Charles Cheung and Pinnacle LGS, Inc. is GRANTED in part as follows: (1) DENIED as to terminating, issue and evidentiary sanctions; (2) MOOT as to an order compelling Defendants to comply with this Courts March 26, 2024 order; and (3) GRANTED as to monetary sanctions in the amount of $4,500. Defendants Charles Cheung and Pinnacle LGS are ordered to pay the additional sanctions to Plaintiff, by and through counsel of record, in the amount of $4,500, within thirty (30) days. Defendants are also ordered to pay the prior sanctions award entered on March 26, 2024, i n the amount of $4,500, within thirty (30) days.

Case Number: 23STCV24498 Hearing Date: July 15, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 15, 2024 Case Name: McGowan, et al. v. Fame Gardens LP Case No.: 23STCV24498 Matter: OSC re: Default Judgment Ruling: The Default Judgment Application is denied without prejudice. Plaintiffs to give notice. This is a habitability matter. Plaintiffs Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan seek a default judgment against Defendant Fame Gardens LP. While Plaintiffs request $540,000 in damages, the Complaint fails to make any specific request for damages against Defendant. This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. ( Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4 th 1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See Greenup v. Rodman (1986) 42 Cal.3d 822, 828; Elec. Funds Sols., LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action. Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001 in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. ( Cole v. Roebling Const. Co. (1909) 156 Cal. 443; Leo v. Dunlap (1968) 260 Cal.App.2d 24, 27-28.) Accordingly , the Default Judgment Application is denied without prejudice. Plaintiffs to give notice.

Case Number: 23STCV04534 Hearing Date: July 9, 2024 Dept: 54 Superior Court of California County of Los Angeles Yang Rim Co., Ltd., Plaintiff, Case No.: 23STCV04534 v. Tentative Ruling A & Y International Global Inc., MIQBA, Inc., Adrian Nasimi, David Kim, Fred Kim, et al., Defendants. Hearing Date: July 9, 2024 Department 54, Judge Maurice A. Leiter Motion for Leave to File a Cross-Complaint Moving Party : Defendants A & Y International Global Inc., Adrian Nasimi Responding Party : Plaintiff Yang Rim Co., Ltd. T/R : DEFENDANTS MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT IS GRANTED. DEFENDANTS to notice. If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. The Court considers the moving papers, opposition, and reply. BACKGROUND Plaintiff brought the present action for (1) breach of contract(s), (2) account stated, (3) open book account, (4) common count for services performed, (5) fraud/false promise, and (6) negligent misrepresentation, based on an alleged series of purchase order contracts entered into by Plaintiff and Defendants. Defendants David Kim, Fred Kim, and MIQBA, Inc. are in default. ANALYSIS A party who fails to plead a cause of action.¿.¿. whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action. (CCP § 426.50.) Causes of action involving the same transaction or occurrence as the claims in the plaintiffs complaint are compulsory and are forfeited if not pleaded in the same action. (CCP § 426.30(a); 426.10(c).) The Court has no discretion to deny a motion for leave to file a compulsory cross-complaint absent substantial evidence of bad faith. ( Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.) Permission to file a permissive cross-complaint may be granted in the interest of justice at any time during the course of the action. (CCP § 428.50(c). Defendants A & Y International Global Inc. and Adrian Nasimi move for leave to file a cross-complaint against Plaintiff Yang Rim Co., Ltd. and Co-Defendants MIQBA, Inc., Fred Kim, David Kim, and new party Alex Kim for (1) intentional fraud, (2) conspiracy to commit intentional fraud, (3) conversion, and (4) conspiracy to commit conversion. The proposed cross-complaint, attached as Exhibit A, arises from the same transaction or occurrence as the underlying complaint. Defendants argue that their first attorney, Andrew Ritholz, withdrew as attorney of record prior to the beginning of discovery and failed to file a timely cross-complaint due to neglect, inadvertence, or oversight. Defendants newly retained counsel has learned new facts from documents produced during discovery on March 28, 2024, which support the filing of this cross-complaint. Defendants also ask for the matter to be abated on the basis that Plaintiff is not qualified to do business in California and, thus, cannot maintain the instant lawsuit. In opposition, Plaintiff argues that the motion is supported only by conclusions based on hearsay regarding recently discovered documents. Plaintiff contends that the declaration of Defendants attorney is insufficient. As noted, the Court must allow leave to file a compulsory cross-complaint absent substantial evidence of bad faith. The Court does not find evidence of bad faith. Defendants may move to abate the action through a separately filed motion. Defendants Motion is GRANTED.

Case Number: 23STCV10720 Hearing Date: July 9, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING MARIA ELENA GRADO, et al., Plaintiffs, v. ANTELOPE VALLEY COUNTRY CLUB IMPROVEMENT COMPANY, et al., Defendants. Case No: 23STCV10720 Hearing Date: July 9, 2024 Calendar Number: 7 Plaintiff Maria Elena Grado seeks terminating, issue, and evidentiary sanctions against Defendant and Cross-Complainant Antelope Valley Country Club Improvement Company (Antelope). Grado additionally seeks $4,800.00 in monetary sanctions. The Court DENIES Grados motion for terminating sanctions. The Court DENIES Grados motion for issue sanctions. The Court DENIES Grados motion for evidentiary sanctions. The Court ORDERS Antelope to provide supplemental responses compliant with the Courts April 2, 2024 discovery order within 15 days of the issuance of this order. If Antelope fails to do so, the Court will issue evidentiary sanctions prohibiting Antelope from introducing any documents not yet produced and from calling any witnesses not yet identified. The Court GRANTS Grados motion for monetary sanctions in the amount of $4,800.00. Antelope shall pay this amount to Grados counsel within 15 days of the issuance of this order. Background This case concerns work done by Plaintiffs Bob and Me Productions, Inc. DBA The Lemon Leaf (Lemon Leaf) and Grado (collectively, Plaintiffs) as food service contractors for Antelope, a country club. On July 23, 2020, the parties entered a contract (the Agreement) whereby Plaintiffs provided food services for Antelope. Plaintiffs occupied and operated a kitchen on Antelopes premises as part of the Agreement. The agreement ran for a three-year term, with automatic three-year extensions up to three times unless either party delivered a notice of cancelation four months in advance of the end of the term. On February 13, 2023, Antelope served a Notice of Non-Renewal of Agreement on Plaintiff. The parties dispute whether this notice validly ended the agreement. As of the filing of this motion, Plaintiffs retained possession and use of the kitchen. Plaintiffs filed this action against Antelope and other defendants on May 12, 2023, alleging (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) declaratory relief; (4) injunctive relief; (5) negligence; (6) fraudulent promises without intent to perform; (7) negligent promises without intent to inform; and (8) intentional infliction of emotional distress (IIED). Plaintiffs subsequently dismissed their third claim for declaratory relief. Antelope filed a Cross-Complaint against Plaintiffs on June 22, 2023. The operative cross-complaint is the Second Amended Cross-Complaint (SACC), which raises claims for (1) breach of contract; (2) wrongful interference; and (3) declaratory relief. On September 29, 2023, Grado served Antelope with written discovery requests that included form interrogatories, special interrogatories, inspection demands, and requests for admission. On December 18, 2023, Grado filed motions to compel further responses to the interrogatories and inspection demands. On February 8, 2024, the Court continued the hearings on both motions to April 2, 2024. At the February 8, 2024 hearing, counsel for Antelope represented that although Plaintiff had not filed a motion to compel further responses to the RFAs, Antelope would provide further responses so that there would be no need for Grado to file another motion to compel. On April 2, 2024, the Court granted Grados motions to compel further responses to the interrogatories and inspection demands. Antelope has not subsequently provided further discovery responses as ordered. Grado filed this motion on June 7, 2024. Antelope filed an opposition and Grado filed a reply. Legal Standard Where a party misuses the discovery process, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc. §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., §§ 2023.010(d), (g).) Monetary sanctions may be imposed ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct&unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code of Civ. Proc. , § 2030.030 , subd. (a).) Issue sanctions may be imposed ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (Code of Civ. Proc. , § 2030.030 , subd. (b).) Evidence sanctions may be imposed by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code of Civ. Proc. , § 2030.030 , subd. (c).) I n more extreme cases, the Court may also impose terminating sanctions by striking out the pleadings or parts of the pleadings, staying further proceedings, dismissing the action, or any part of the action, or rending a judgment by default against the party misusing the discovery process. (Code of Civ. Proc. § 2030.030(d).) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. ( Lang v. Hochman (2000) 77¿Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. ( Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) [A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith. ( Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Further, preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. ( Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. ( Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. ( Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. ( Id . at 788.) Discussion Antelopes failure to provide further RFA responses does not violate a court order because Plaintiff never moved to compel further responses to the RFAs. The Court will therefore only consider Antelopes failure to provide further responses to Grados interrogatories and inspection demands. Counsel for Antelope contends that Plaintiffs counsel agreed to take this motion off calendar if Antelope provided responses before the hearing date on the motion. Counsels declaration is not worded quite so strongly, stating that counsels discussed the production and responses and agreed that [counsel for Plaintiffs] would consider taking the motion off calendar if [Antelope] provided full and complete responses that were organized in response to the discovery requests. (Zinder Decl. at p. 1:8-10 [emphasis added].) Further, Plaintiffs counsel flatly contradicts this contention in his own declaration. (Marcus Reply Decl. ¶¶ 3-10.) Plaintiffs counsel declares that he offered to take the motion off calendar if full responses were received by 5:00 p.m. on June 7, 2024. (Marcus Reply Decl. ¶¶ 6-10.) In other words, Plaintiffs counsel offered to retract the motion that he had filed earlier that day if responses were received on the same day. The Court therefore does not find that this is a basis to deny sanctions. Counsel for Antelope declares that the failure to timely provide supplemental responses is due to his own inefficiency in handling the large number of documents that Antelope provided for production. (Zinder Decl. at p. 1:12-13.) Counsel states that there are 1,107 pages of documents in total. (Zinder Decl. at p. 1:6-7.) Counsel for Antelope does not provide any authority indicating that fault of counsel is a basis for the denial of discovery sanctions. Furthermore, over 60 days have passed since the Courts April 2, 2024 discovery order, and over nine months have passed since the discovery was initially served on September 29, 2023. That is more than enough time to process 1,107 pages of documents. Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. ( Deyo v. Killbourne , supra , 84 Cal.App.3d at p. 787.) The Court therefore finds that Antelopes failure to comply with the April 2, 2024 discovery order has been willful and that sanctions are warranted. Terminating Sanctions As discussed above, terminating sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. ( Van Sickle v. Gilbert , supra , 196 Cal.App.4th at p. 1516.) Furthermore, terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. ( Link v. Cater , supra , 60 Cal.App.4th at p. 1326.) Here, there has been no previous noncompliance with a rule or order. [T]he trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective. ( Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191192.) In Department of Forestry & Fire Protection v. Howell , the trial court found that [plaintiffs] willful, repeated and egregious misuses of the discovery process permeated nearly every single significant issue in this case to an extent that threatened the integrity of the judicial process and made it implausible that defendants could ever receive a fair trial. ( Id . at 197 [internal quotations omitted].) Here, however, the conduct is not so extreme as to warrant terminating sanctions in the first instance, nor does the record show that lesser sanctions would be unlikely to produce compliance. Counsel for Antelope states that he has been provided with documents for supplemental production and is preparing them for production. This is not the kind of willful, repeated and egregious misuses of the discovery process permeat[ing] every single significant issue in this case to which terminating sanctions are intended to respond. ( Department of Forestry & Fire Protection v. Howell , supra , 18 Cal.App.5th at 197.) The Court therefore denies terminating sanctions. Issue Sanctions Grado does not identify any issue sanctions that she requests apart from the exclusion of any witnesses not yet identified and any documents not yet produced, which is an evidentiary sanction. The Court will therefore evaluate this request under evidentiary sanctions, and denies issue sanctions. Evidentiary Sanctions Grado requests that Antelope be prohibited from introducing any documents not yet produced and from calling any witnesses not yet identified. Given counsel for Antelopes show of contrition, the Court is not prepared to grant such a sanction at this time. However, the Court orders that Antelope provide supplemental responses compliant with the April 2, 2024 order within 15 days of the issuance of this order. If Antelope does not do so, the Court will issue evidentiary sanctions prohibiting Antelope from introducing any documents not yet produced and from calling any witnesses not yet identified. Monetary Sanctions Grado requests $4,800.00 in attorneys fees. Grado requests an hourly rate of $600.00 for attorney Richard Marcus. The Court finds this rate to be reasonable. Marcus spent 5.5 hours preparing this motion. (Marcus Decl. ¶ 60.) Marcus spent 2.0 hours reviewing the opposition and drafting and revising the reply. (Marcus Reply Decl. ¶ 30.) Marcus anticipated that the combined time to review the opposition, draft the reply, and attend the hearing would amount to 4.0 hours. Working off of the 2.0 hours actually spent drafting the reply, the Court finds that an additional 1.0 hours for the hearing would be reasonable, for a total of 8.5 hours.. In any event, Plaintiff requests less than this total, only requesting $4,800.00 the equivalent of 8.0 hours. The Court finds this amount to be reasonable. The Court awards $4,800.00 in monetary sanctions.

Case Number: 24CHCV00391 Hearing Date: July 9, 2024 Dept: F43 Dept. F43 Date: 7-9-24 Case #24CHCV00391, J.B. Hunt Transport, Inc. vs. Contractors Wardrobe, Inc. Trial Date: N/A DEMURRER WITH MOTION TO STRIKE MOVING PARTY: Defendant Contractors Wardrobe, Inc. RESPONDING PARTY: Plaintiff J.B. Hunt Transport, Inc. RELIEF REQUESTED Demurrer to the Complaint · 2 nd Cause of Action for Common Counts · 3 rd Cause of Action for Unjust Enrichment Motion to Strike · Request for attorneys fees and costs of suit herein incurred and according to the Agreement in Plaintiff's Prayer [p. 6:17-18 of the Complaint] · Attorneys fees [pp. 4:16, 4:25, 5:6, 5:8, and 5:13] · Request for special and consequential damages in Plaintiffs Prayer [p. 6:15] RULING : Demurrer is sustained; motion to strike is granted. SUMMARY OF ACTION Plaintiff J.B. Hunt Transport, Inc. (Plaintiff) is alleging that it entered into a written agreement with Defendant Contractors Wardrobe, Inc. (Defendant). The written agreement, titled Dedicated Contract Services Transportation Agreement, was signed on March 12, 2020. The Agreement is attached as Exhibit A to Plaintiffs complaint. Pursuant to the terms of the Agreement, Plaintiff was to provide transportation of Defendants good throughout California for an initial term of five years, beginning on April 1, 2020. Plaintiff alleges that Defendant terminated the Agreement on August 25, 2023, effective September 9, 2023. Plaintiff is alleging that Defendant has failed to pay Plaintiff for services provided by Plaintiff under the Agreement at the total costs of $1,448,158.87. Plaintiff also alleges that Defendant failed to pay Plaintiff $340,282.82 in unamortized start-up costs and permanent delete charges. Plaintiffs complaint, filed on February 8, 2024, alleges three causes of action for (1) breach of contract, (2) common counts, and (3) unjust enrichment. Defendant filed its demurrer and motion to strike on May 13, 2024. Defendant demurs to Plaintiffs Second and Third Causes of Action. Plaintiff filed an opposition to Defendants demurrer and motion to strike on June 25, 2024. ANALYSIS A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. ( Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& ( Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. ( Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Second Cause of Action for Common Counts Defendant demurs to Plaintiffs Second Cause of Action for Common Counts on the basis that it fails to state facts sufficient to state a cause of action and is uncertain. Defendant argues that Plaintiffs cause of action for common counts pleads four different types of common counts that should have been listed as separate causes of action. Those four distinct common counts are (1) open book account; (2) account stated; (3) goods and services rendered; and (4) money had and received. Each cause of action, count, or defense must be separate stated and given a separate number. (Cal. Rules of Court Rule 2.112.) Defendant argues that the four common counts listed by Plaintiff should be distinct causes of action because they each have separate jury instructions: Money Had and Received (CACI § 370); Goods and Services Rendered (CACI § 371); Open Book Account (CACI § 372); and Account Stated (CACI § 373). Demurrers have long been sustained when separate causes of action are not listed separately. ( Haddad v. McDowell (1931) 213 Cal. 690, 692; Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235 (the special demurrer was properly sustained because the complaint was defective in that two purported causes of action were not separately stated).) Plaintiffs opposition does not address Defendants arguments that the common counts should be listed separately. Instead, Plaintiff only argues that common counts are not subject to fact pleading standards. However, as Defendant argues in its reply, the case that Plaintiff cites in support of this argument sustains a demurrer to common counts for failing to comply with facts pleadings standards. ( Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 (demurring to common counts because plaintiff failed to comply with fact pleading standards by pleading them in a conclusional fashion).) Defendants demurrer to this cause of action is sustained on the basis that the common costs listed under this cause of action should be pled as separate causes of action. Defendant also demurs to this cause of action on the basis that it improperly pleads common counts seeking the same damages as the breach of contract cause of action. Plaintiffs cannot simultaneously: (1) plead that an enforceable express contract exists; and (2) plead common counts seeking the same relief for the same alleged breach. (See Leoni v. Delany (1948) 83 Cal.App.2d 303, 307 (It is the unenforceability of an otherwise valid contract which gives rise to the right of relief through the medium of a common count.); Moore v. Bartholomae Corp. (1945) 69 Cal.App.2d 474, 477 (The law is established in California that a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated.).) Plaintiffs complaint alleges that the damages sought by the common counts cause of action are the same as those caused by Defendants breach of a valid and enforceable contract. (See Comp., ¶¶ 12, 13, 18, 22, 24, 29, 31, and 33.) Two of the common counts also expressly allege that they are based on an alleged breach of contract and seek breach of contract damages. (See Comp., ¶¶ 20-21; 24-25, 27.) Plaintiffs cause of action for common counts is based on the same damages as Plaintiffs cause of action for breach of contract and is therefore improperly pled. Defendants demurrer to the second cause of action can also be sustained on this basis. Defendant also argues that the second cause of action is uncertain because Plaintiff does not plead that it is an alternative to the breach of contract cause of action and instead pleads it as its own distinct cause of action. Plaintiffs opposition argues that the common counts are pled in the alternative, but as Defendant points out in its reply, there is no language in Plaintiffs complaint indicating that the common counts are being pled as an alternative to the breach of contract cause of action. The opposition also does not explain how the common counts could be pled in the alternative. Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend for the reasons given above. Third Cause of Action for Unjust Enrichment Defendant demurs to Plaintiffs Third Cause of Action for Unjust Enrichment on the basis that it fails to state facts sufficient to state a cause of action against Defendant. Defendant argues that demurrer to this cause of action is appropriate because there is no cause of action for unjust enrichment in California. ( Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 785, 793 (unjust enrichment is not a valid cause of action under California law).) Defendant further argues that unjust enrichment cannot stand as its own cause of action. (See Everett v. Mountains Recreation & Conservation Authority (2015) 239 Cal.App.4th 541, 553.) Plaintiffs opposition does not address Defendants argument that unjust enrichment is not a cause of action in California. Plaintiff cites CACI § 375 in its opposition, but that section does not apply to the unjust enrichment that Plaintiff has pled because it involves third-party middlemen, and that section states that unjust enrichment is not a cause of action. Defendant also argues that even if there were a cause of action for unjust enrichment in California, this cause of action would also be duplicative of Plaintiffs breach of contract cause of action because it requests the same damages. (See Comp., ¶ 37.) Because there is no cause of action for unjust enrichment in California, Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend. Motion to Strike A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, [a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Under CCP § 436(a), [t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading. Under CCP § 436(b), the court may [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Attorney Fees Defendant has requested that Plaintiffs request for attorney fees be stricken because attorney fees are available only when provided for by contract or statute. (CCP §1021.) Plaintiffs complaint claims that it can recover attorney fees according to the Agreement, but the Agreement makes no provision for attorney fees. Plaintiff also makes this claim in its opposition, but its claim is not supported by reference to any section of the Agreement. Plaintiff does refer to Paragraph 3(a) on page 2 of the Contract, but that paragraph only mentions costs, not attorney fees. Accordingly, Plaintiffs request for attorney fees is ordered stricken from the complaint. Special and Consequential Damages Plaintiff also requests special and consequential damages, but Defendant points out that the alleged relevant agreement expressly prohibits the parties from seeking such damages. (Wilson Decl., Ex. A, § 6(d) (in no event will either Party be liable for incidental, consequential (including lost profits and chargebacks), special, punitive or exemplary damages in connection with the goods or the services rendered hereunder even if notice was given of the possibility of such damages and even if such damages were reasonably foreseeable).) Plaintiff argues in its opposition that it does not seek damages for the goods or services rendered; rather, Plaintiff seeks damages for Defendants unilateral cancellation of the contract. However, Plaintiff does not give a basis for seeking special and consequential damages for the cancellation of the contract. Furthermore, Defendant argues in its reply that terminating the services under a service contract arises in connection with&the services rendered hereunder. Therefore, the provision cited above could, in fact, apply to this situation. Because the requested damages are based on a breach of the Agreement but the Agreement forbids recovery of such damages, Plaintiffs request for special and consequential damages is ordered stricken from the complaint. CONCLUSION Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend. Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend. Defendants motion to strike is granted. Plaintiff is given 30 days leave to amend. Moving party to give notice to all parties.