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1 MATHEWS PROFESSIONAL LAW GROUP, PC
Soby M. Mathews (State Bar #208317)
2 39899 Balentine Dr., Ste. #200
Newark, CA 94560
3 Telephone: (510) 498-1949
4 Attorneys for Cross Defendant:
Amiseq, Inc.
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6
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10 UNLIMITED CIVIL JURISDICTION
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BANK OF AMERICA, N.A., a national ) Case No.: 19-CIV-04630
Mathews Professional Law Group, PC
12 association, )
)
39899 Balentine Dr., Ste. 200
Plaintiff, ) CROSS-DEFENDANT’S REQUEST FOR
Newark, CA 94560
13 vs. ) JUDICIAL NOTICE IN SUPPORT OF THE
)
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) MOTION TO STRIKE PORTIONS OF THE
CPQ SOLUTIONS, LLC, a Delaware
) CROSS-COMPLAINANTS’ SECOND
15 Limited Liability Company; ) AMENDED CROSS COMPLAINT
CHRISTOPHER CAMPANILE, an )
16 PURSUANT TO CAL. CIV. PROC. CODE §
individual; NITESH ) 436 and CCP § 472(a);
HISSARIA, an individual; DOES 1-100, )
17 )
inclusive,
)
18 Defendants. )
)
19 CHRISTOPHER CAMPANILE, an ) [Notice of Motion, Request for Judicial Notice,
individual, and derivatively on behalf of ) Declaration of Soby M. Mathews, Proposed
20 ) Order and Memorandum of Points and
CPQ SOLUTIONS, LLC, a Delaware )
21 limited liability company; DAVID ESPIE, ) Authorities filed concurrently herewith]
individually, and derivatively on behalf of )
22 CPQ SOLUTIONS, LLC, a Delaware )
limited liability company, )
23 )
) Date: May 17, 2024
24 Cross-Complainants, ) Time: 9:00 AM
vs. ) Location: Dept. 24
25 )
NITESH HISSARIA, an individual; THE ) Judge: The Hon. Jeffrey R. Finigan
26 )
CHUGH FIRM, PC, a California )
27 professional corporation; CHUGH, LLP, a ) Complaint Filed: August 9, 2019
California limited liability partnership; ) Trial Date: None set
28 NAVNEET CHUGH, an individual; )
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CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS-
COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a);
1 DEVSUMI REPUBLIC, LLC, a California )
limited liability company; DIGITIZE )
2 )
SOLUTIONS, LLC, a Nevada limited )
3 liability company; GUANQIONG WU, an )
individual; AMISEQ, INC., a Delaware )
4 corporation; HORIZON CONSULTING, )
INC., a Washington corporation, a )
5 )
California Corporation; BANK OF )
6 AMERICA, a national association, and )
ROES 1-20, )
7 )
)
Cross-Defendants, )
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10 Cross-Defendant Amiseq, Inc. hereby requests that the Court take judicial notice of the
11 following document pursuant to California Evidence Code §§ 452(d) and 453:
Mathews Professional Law Group, PC
12 1. Cross-Defendant Amiseq, Inc. requests that this Court take judicial notice of the
39899 Balentine Dr., Ste. 200
document titled “Minute Order” for the Court ruling on the demurrer dated December 1, 2023, to
Newark, CA 94560
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14 discuss the merits of Cross-Defendant Navneet Chugh, the Chugh Firm PC, and Chugh LLP’s
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(collectively referred to as “Chugh”) demurrer to Cross-Complainants Christopher Campanile and
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David Espie, and derivatively on behalf of CPQ Solutions, LLC’s (collectively referred to as
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“Cross-Complainants”) Amended Cross-Complaint. This document must be judicially noticed for
the following reasons: Cal. Evid. Code § 452(d) provides that judicial notice may be taken of “(d)
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Records of (1) any court of this state . . .” Cal. Evid. Code § 453 provides that [t]he trial court
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shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives
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each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable
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such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient
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information to enable it to take judicial notice of the matter. Each adverse party is provided
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sufficient notice of the request through the service upon them of this Request for Judicial Notice.
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The foregoing description furnishes the Court with sufficient information to enable it to take
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judicial notice of the matter. These are records of the clerk of this Court pertaining to the above-
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captioned case which are available on the court docket, and are attached hereto as Exhibit A
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CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS-
COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a);
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which has the title “Minute Order” as the true and correct copy of the ruling on Cross-Defendant
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Chugh’s demurrer. The ruling is dated December 1, 2023.
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2. Cross-Defendant Amiseq, Inc. requests that this Court take judicial notice of the
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document titled “Minute Order” for the Court ruling on Chugh’s motion to strike dated December
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1, 2023, to discuss the merits of Cross-Defendant Chugh’s motion to strike portions of Cross-
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Complainants’ Amended Cross-Complaint. This document must be judicially noticed for the
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following reasons: Cal. Evid. Code § 452(d) provides that judicial notice may be taken of “(d)
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Records of (1) any court of this state . . .” Cal. Evid. Code § 453 provides that [t]he trial court
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shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives
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each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable
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such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient
Mathews Professional Law Group, PC
12
39899 Balentine Dr., Ste. 200
information to enable it to take judicial notice of the matter. Each adverse party is provided
Newark, CA 94560
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sufficient notice of the request through the service upon them of this Request for Judicial Notice.
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The foregoing description furnishes the Court with sufficient information to enable it to take
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judicial notice of the matter. These are records of the clerk of this Court pertaining to the above-
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captioned case which are available on the court docket, and are attached hereto as Exhibit B
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which has the title “Minute Order” as the true and correct copy of the ruling on Cross-Defendant
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Chugh’s motion to strike. The ruling is dated December 1, 2023.
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3. Cross-Defendant Amiseq, Inc. requests that this Court take judicial notice of the
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document titled “Minute Order” for the hearing on the demurrer held on January 19, 2024, to
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discuss the merits of Amiseq’s demurrer to Cross-Complainants’ Amended Cross-Complaint. This
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document must be judicially noticed for the following reasons: Cal. Evid. Code § 452(d) provides
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that judicial notice may be taken of “(d) Records of (1) any court of this state . . .” Cal. Evid.
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Code § 453 provides that [t]he trial court shall take judicial notice of any matter specified in
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Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request,
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through the pleadings or otherwise, to enable such adverse party to prepare to meet the request;
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and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the
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CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS-
COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a);
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matter. Each adverse party is provided sufficient notice of the request through the service upon
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them of this Request for Judicial Notice. The foregoing description furnishes the Court with
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sufficient information to enable it to take judicial notice of the matter. These are records of the
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clerk of this Court pertaining to the above-captioned case which are available on the court docket,
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and are attached hereto as Exhibit C which has the title “Minute Order” as the true and correct
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copy of the hearing on the demurrer. The date of the hearing was held on January 19, 2024.
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8 MATHEWS PROFESSIONAL LAW
Date: January 26, 2024 GROUP, PC
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____________________________
Mathews Professional Law Group, PC
12 Soby M. Mathews, Esq.
39899 Balentine Dr., Ste. 200
Attorneys for Cross Defendant
Newark, CA 94560
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CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS-
COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a);
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Mathews Professional Law Group, PC
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39899 Balentine Dr., Ste. 200
Newark, CA 94560
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14 EXHIBIT A
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CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS-
COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a);
Case Number: 19-CIV-04630
SUPERIOR COURT OF SAN MATEO COUNTY
400 County Center 1050 Mission Road 800 North Humboldt Street
Redwood City, CA 94063 South San Francisco, CA 94080 San Mateo, CA 94401
www.sanmateo.courts.ca.gov
Minute Order
BANK OF AMERICA, N.A., a national association vs. CHRISTOPHER 19-CIV-04630
CAMPANILE, et al
12/01/2023 9:00 AM
Hearing on Demurrer
Hearing Result: Held
Judicial Officer: Finigan, Jeffrey R. Location: Courtroom 2F
Courtroom Clerk: Erica Boffi Courtroom Reporter:
Parties Present
Exhibits
Minutes
Journals
Case Events
- No appearance by any parties or their counsel of record.
- Tentative ruling adopted and becomes order:
Cross-Defendants Navneet Chugh, the Chugh Firm PC, and Chugh LLP's ("Cross-Defendants" or "Chugh")
Demurrer to Cross-Complainants Christopher Campanile et. al.'s Amended Cross-Complaint (AXC), filed
June 20, 2023, is ruled upon as set forth below.
Chugh refers in its briefing to the Amended Cross-Complaint as the "Second Amended Cross-Complaint,
or "SAXC." This Order refers to it as the AXC.
The AXC asserts seventeen (17) total causes of action, eight (8) of which are asserted against the Chugh
Cross-Defendants. Chugh has demurred to all eight of these claims.
The AXC identifies three Cross-Complainants: (1) CPQ Solutions, LLC ("CPQ") (2) Christopher Campanile,
and (3) David Espie. On its face, the AXC does not identify which of the three Cross-Complainants is
asserting each of the 17 causes of action, which tacitly suggests that all three Cross-Complainants are
asserting all 17 cross-claims.
As to the Sixth Cause of Action ("indemnity"), the demurrer is SUSTAINED-in-part and OVERRULED-in-
part. (CCP 430.10(e).)
The Court disagrees with Cross-Complainants' waiver argument for lack of supporting authority. Cross-
Complainants argue that because the original Cross-Complaint asserted an indemnity claim against
Chugh, and because Chugh filed an Answer to the original Cross-Complaint rather than a demurrer,
Chugh has waived the right to demur to the AXC's indemnity cause of action. Cross-Complainants cite
no authority supporting this argument, including no case finding a waiver under these circumstances.
Code Civ. Proc. 430.41(b) provides for a waiver under somewhat analogous circumstances, but it does
not apply here, because the Court did not previously rule on a demurrer to the original Cross-Complaint.
Further, Chugh's Reply cites to CCP 430.80, which contradicts the waiver argument.
As to Cross-Complainant CPQ, the demurrer is OVERRULED. "The elements of a cause of action for
indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the
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Case Number: 19-CIV-04630
indemnitee for which the indemnitor is ... equitably responsible." (Bailey v. Safeway, Inc. (2017) 199
Cal.App.4th 206, 217.) Here, CPQ appears to seek "equitable indemnity," since no contractual indemnity
is alleged, nor appears applicable. As noted below, the Court is overruling the demurrer with respect to
CPQ's claims for breach of fiduciary duty and professional negligence. Such claims could, potentially,
support CPQ's claim for indemnity against Chugh.
As to Cross-Complainants Campanile and Espie, the demurrer is SUSTAINED with leave to amend, on
grounds that Campanile and Espie have asserted no valid claims against Chugh that can serve as the
predicate basis for an "indemnity" claim. Further, as to Cross-Complainant Espie, Bank of America's
Complaint in this case does not name Mr. Espie as a defendant. Espie cites no authority, and makes no
argument in his Opposition brief, that an indemnity cause of action has any application where the party
seeking indemnification (Espie) is not being sued, and thus, is not subject to any potential liability.
As to the Seventh and Eighth Causes of Action ("fraudulent or voidable transfer"), the Demurrer is
SUSTAINED with leave to amend. (CCP 430.10(e).) Preliminarily, the Cross-Complainants waiver
argument is rejected for the same reasons previously stated.
Both fraudulent transfer causes of action require fraudulent intent. See Yaseu Electronics Corp. v.
Tamura (1994) 28 Cal.App.4th 8, 13 ("A fraudulent conveyance is a transfer by the debtor of property to
a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its
claim."); Civ. Code 3439.04(a)(1) ("A transfer of property by a debtor is voidable if the debtor made the
transfer with actual intent to hinder, delay, or defraud any creditor of the debtor."); CACI No. 4200,
4201, 4202; Aghaian v. Minassian (2020) 59 CalApp.5th 447, 455, n. 8.)
Chugh argues that the AXC is entirely conclusory with respect to the allegations against Chugh, and that
it alleges no facts supporting the conclusory allegation that Chugh had actual and/or constructive
knowledge of Hissaria's alleged wrongful acts (i.e., Hissaria's alleged efforts to steal funds from CPQ).
The Court agrees that these allegations against Chugh are conclusory. Although the AXC alleges in a
conclusory manner that all Cross-Defendants, including Chugh, had "full knowledge" of Hissaria's
wrongful acts (see 16) and that they "conspired" with Hissaria to commit his wrongful acts, the AXC
alleges no facts pertaining to Chugh that would allow a reasonable fact finder to reach that conclusion.
The AXC alleges that Chugh received $203,000 to represent Mr. Hissaria, and that the funds were wired
from a bank account belonging to CPQ. (See 36-39.) It alleges that Chugh later returned $178,000 back
to Hissaria at Hissaria's request, even though the funds rightfully belonged to CPQ and not Hissaria. (Id.)
Although the AXC alleges (at 175) that Campanile advised Chugh the retainer was transferred "without
authorization" and should be returned to CPQ, it alleges no facts that Chugh was aware Hissaria was
stealing from CPQ or that Chugh had any fraudulent intent.
As to the Tenth, Twelfth, and Fourteenth Causes of Action ("aiding & abetting" breach of fiduciary duty,
corporate waste, and conversion), the Demurrer is SUSTAINED with leave to amend. (CCP 430.10(e).)
"[L]iability may ... be imposed on one who aids and abets the commission of an intentional tort if the
person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or
encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a
tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the
third person." (Casey v. U.S. Bank National Ass'n (2005) 127 Ca4th 1138, 1144." "[A] defendant can only
aid and abet another's tort if the defendant knows what 'that tort' is." (Id., at 1146 (citations omitted).)
The aiding and abetting claims require factual allegations supporting the conclusion that Chugh knew
about, and intended to encourage and/or assist, Hissaria's alleged theft of CPQ's funds. As stated above,
the AXC alleges no facts, as opposed to conclusions, that Chugh knew about Hissaria's wrongful acts or
intentions, and intended to aid or assist in Hissaria's alleged theft of CPQ assets.
As to the Sixteenth Cause of Action ("breach of fiduciary duty"), the Demurrer is SUSTAINED-in-part and
OVERRULED-in-part. (CCP 430.10(e).)
As to Cross-Complainant CPQ, the demurrer is OVERRULED. The AXC alleges that CPQ Solutions, LLC
("CPQ") retained Chugh as its counsel during the relevant periods in the AXC, and thus, that Chugh owed
fiduciary duties to CPQ. (AXC, 6, 14, 37, 163, 167.) Chugh's Demurrer primarily argues that this breach
of fiduciary duty claim is uncertain and fails to state a cause of action "as to CAMPANILE or ESPIE."
(Demurrer at pp. 10-11.) Specifically, Chugh argues that the AXC's allegations are inconsistent and/or
unclear as to whether Campanile and/or Espie, individually, ever retained Chugh as their individual
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counsel, and thus, the alleged facts do not clearly establish any attorney-client (and hence, any fiduciary)
relationship between Chugh and Campanile and/or Espie in their individual capacities. Because the AXC
clearly alleges that CPQ retained Chugh as its counsel, and thus, that Chugh owed fiduciary duties to
CPQ, which Chugh does not appear to dispute, as to Cross-Complainant CPQ, the demurrer to this cause
of action is overruled. The AXC at paragraph 175 alleges that Chugh was put on notice prior to
transferring funds to Hissaria that the funds belonged to CPQ and were to be returned to CPQ.
Nevertheless, Chugh followed Hissaria's instructions and returned the funds to Hissaria instead of CPQ.
As to Cross-Complainants Campanile and Espie, the demurrer is SUSTAINED with leave to amend, on
grounds that the AXC does not sufficiently allege the existence of an attorney-client (and hence,
fiduciary) relationship between Chugh and Campanile and/or Espie. (CCP 430.10(e).) The alleged
fiduciary relationship is an alleged attorney-client relationship. Because the AXC does not allege an
attorney-client relationship between Chugh and Espie or Campanile as individuals, the demurrer is
sustained with leave to amend.
The Opposition brief further clouds this issue by arguing that Campanile and Espie "bring this suit
derivatively on behalf of nominal cross-defendant CPQ." (See AXC 21.) This argument appears to suggest
that Campanile and Espie are not asserting this professional negligence claim in their individual
capacities. If Campanile and Espie only intend to assert this (malpractice) claim derivatively on behalf of
CPQ (the LLC), and not in their individual capacities, the AXC should make that clear, which it does not.
As to Cross-Complainant Espie, the AXC does not allege the existence of an attorney-client (fiduciary)
relationship between Chugh and Espie.
The AXC claims that CPQ assigned its rights to Campanile and Espie to assert CPQ's malpractice claim.
(AXC 22.) Legal malpractice claims are not assignable. (See Baum v. Duckor, Spradling & Metzger (1999)
72 Cal.App.4th 54, 65.)
As to the Seventeenth Cause of Action ("professional negligence"), the Demurrer is SUSTAINED-in-part
and OVERRULED-in-part. (Code Civ. Proc. Sect. 430.10(e))
As to Cross-Complainant CPQ, the demurrer is OVERRULED, for the same reasons stated vis a vis the
16th cause of action.
As to Cross-Complainants Campanile and Espie, the demurrer is SUSTAINED for the same reasons stated
vis a vis the 16th cause of action.
Any further amended Cross-Complainant shall be filed within 10 days of notice of entry of the formal
order on this demurrer.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for
Cross Defendant (Chugh) shall prepare a written order consistent with the Court's ruling for the Court's
signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to
all parties who have appeared in the action, as required by law and the California Rules of Court.
Others
Comments:
Future Hearings and Vacated Hearings
December 01, 2023 9:00 AM Motion to Strike
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
Smith, Rhiannon
December 14, 2023 2:00 PM Informal Discovery Conference
Mau, Michael L.
Courtroom H
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Case Number: 19-CIV-04630
January 05, 2024 9:00 AM Hearing on Demurrer
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
January 18, 2024 4:00 PM Informal Discovery Conference
Mau, Michael L.
January 26, 2024 9:00 AM Motion to Compel Further
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
January 29, 2024 9:00 AM Case Management and Trial Setting Conference
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
February 02, 2024 9:00 AM Motion to Compel Further
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
February 02, 2024 9:00 AM Motion to Compel Further
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
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Mathews Professional Law Group, PC
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39899 Balentine Dr., Ste. 200
Newark, CA 94560
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14 EXHIBIT B
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CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS-
COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a);
Case Number: 19-CIV-04630
SUPERIOR COURT OF SAN MATEO COUNTY
400 County Center 1050 Mission Road 800 North Humboldt Street
Redwood City, CA 94063 South San Francisco, CA 94080 San Mateo, CA 94401
www.sanmateo.courts.ca.gov
Minute Order
BANK OF AMERICA, N.A., a national association vs. CHRISTOPHER 19-CIV-04630
CAMPANILE, et al
12/01/2023 9:00 AM
Motion to Strike
Hearing Result: Held
Judicial Officer: Finigan, Jeffrey R. Location: Courtroom 2F
Courtroom Clerk: Erica Boffi Courtroom Reporter:
Parties Present
Exhibits
Minutes
Journals
Case Events
- No appearance by any parties or their counsel of record.
- Tentative ruling adopted and becomes order:
For the reasons stated below, Cross-Defendants Navneet Chugh, the Chugh Firm PC, and Chugh LLP's
("Cross-Defendants" or "Chugh") Motion to Strike portions of Cross-Complainants Christopher
Campanile et. al.'s Amended Cross-Complaint (AXC), filed June 20, 2023, is GRANTED-in-part and
DENIED-in-part as follows:
As to the Motion to Strike AXC 15 - 17 (in the entirety for each) the Motion to Strike is GRANTED with
leave to amend. The AXC's allegation that Chugh is the "alter ego" of all other Cross-Defendants, and
otherwise liable for the acts of all other Cross-Defendants, is conclusory and unsupported by sufficient
facts. "The basic rule stated by our Supreme Court as a guide in the application of [the] doctrine [of alter
ego] is as follows: The two requirements are (1) that there be such unity of interest and ownership that
the separate personalities of the corporation and the individual no longer exist, and (2) that, if the acts
are treated as those of the corporation alone, an inequitable result will follow." Associated Vendors, Inc.
v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 837 (citations omitted). The familiar litany of factors
showing alter ego include the commingling of funds; unauthorized diversion of corporate funds to other
than corporate uses; "treatment by an individual of the assets of the corporation as his own"; "failure to
maintain minutes or adequate corporate records"; identical equitable ownership in entities; failure to
adequately capitalize corporation; "absence of corporate assets and undercapitalization"; "use of a
corporation as a mere shell, instrumentality or conduit for a single venture or the business of an
individual"; "diversion of assets from a corporation by or to a stockholder or other person or entity, to
the detriment of creditors"; "the manipulation of assets and liabilities between entities so as to
concentrate the assets in one and the liabilities in another"; "contracting with another with intent to
avoid performance by use of a corporate entity as a shield against personal liability"; and "use of a
corporation to transfer to it the existing liability of another person or entity." Id., at pp. 838-840
(citations omitted). The AXC alleges no facts supporting the conclusion that Chugh can be
considered/deemed the "alter ego" of any of the other named or unnamed Cross-Defendants, nor
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Case Number: 19-CIV-04630
otherwise liable for their acts.
As to the Motion to Strike AXC 19 (lines 22-27) and 20 (in its entirety) the Motion to Strike is DENIED.
Those paragraphs not appear to apply to Chugh. Indeed, paragraph 20 specifically states it is made
"with the exception of Chugh."
As to the Motion to Strike 120, 126, 137, 147, 157, 182, and 188 (in their entirety as to each) and 4 of
the Prayer for Relief, all of which allege bases for punitive damages and a request punitive damages, the
Motion to Strike is GRANTED with leave to amend. Civ. Code 3294 permits a request for punitive
damages where the pleading alleges facts sufficient to support a finding of malice, fraud, or oppression.
The demurrer is being sustained as to all claims asserted by Cross-Complainants Campanile and Espie,
and thus their request for punitive damages fails. As to CPQ, although its claims against Chugh for
professional negligence, breach of fiduciary duty, and indemnity survive the demurrer, the AXC alleges
no facts pertaining to Chugh that permit the conclusion that Chugh is guilty of malice, fraud, or
oppression. Accordingly, the Motion to Strike is granted.
As to the Motion to Strike 7 of the Prayer for Relief for attorney's fees, the Motion to Strike is GRANTED
with leave to amend. The AXC cites no statute or contract that provides a basis for recovering attorney's
fees from Chugh. Chugh is not a party to the Line of Credit Agreement referenced in the Opposition
brief.
Any further amended Cross-Complainant shall be filed within 10 days of notice of entry of the formal
order on this Motion to Strike.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for
Cross Defendant (Chugh) shall prepare a written order consistent with the Court's ruling for the Court's
signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to
all parties who have appeared in the action, as required by law and the California Rules of Court.
Others
Comments:
Future Hearings and Vacated Hearings
December 01, 2023 9:00 AM Hearing on Demurrer
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
Smith, Rhiannon
December 14, 2023 2:00 PM Informal Discovery Conference
Mau, Michael L.
Courtroom H
January 05, 2024 9:00 AM Hearing on Demurrer
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
January 18, 2024 4:00 PM Informal Discovery Conference
Mau, Michael L.
January 26, 2024 9:00 AM Motion to Compel Further
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
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Case Number: 19-CIV-04630
January 29, 2024 9:00 AM Case Management and Trial Setting Conference
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
February 02, 2024 9:00 AM Motion to Compel Further
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
February 02, 2024 9:00 AM Motion to Compel Further
Courtroom 2F
Boffi, Erica
Finigan, Jeffrey R.
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EXHIBIT C
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Mathews Professional Law Group, PC
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39899 Balentine Dr., Ste. 200
Newark, CA 94560
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CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS-
COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a);
Case Number: 19-CIV-04630
SUPERIOR COURT OF SAN MATEO COUNTY
400 County Center 1050 Mission Road 800 North Humboldt Street
Redwood City, CA 94063 South San Francisco, CA 94080 San Mateo, CA 94401
www.sanmateo.courts.ca.gov
Minute Order
BANK OF AMERICA, N.A., a national association vs. CHRISTOPHER 19-CIV-04630
CAMPANILE, et al
01/19/2024 9:00 AM
Hearing on Demurrer
Hearing Result: Held
Judicial Officer: Finigan, Jeffrey R. Location: Courtroom 2F
Courtroom Clerk: Erica Boffi Courtroom Reporter: Rhiannon Smith
Parties Present
BROWN, MICHAEL W. Attorney
MATHEWS, SOBY M. Attorney
POLARD, STEVEN G.F. Attorney
Exhibits
Minutes
Journals
Case Events
- Matter is called at: 9:09 AM
- Party appeared by audio and/or video; Attorney: POLARD, STEVEN G.F.; Attorney: MATHEWS, SOBY M.;
Attorney: BROWN, MICHAEL W.; Monica Zafra (observing)
- Argument Presented by Counsel. Matter Submitted.
- Tentative ruling adopted and becomes order:
The Demurrer of Cross-Defendant Amiseq, Inc. ("Amiseq") to the Amended Cross-Complaint of
Christopher Campanile and David Espie, individually and derivatively on behalf of CPQ Solutions, LLC
("Cross-Complainants"), is OVERRULED.
Cross-Complainants did not file an opposition to this Demurrer, but filed a Notice of Filing of Second
Amended Cross-Complaint on December 21, 2023 and an Objection to Amiseq's Reply on December 28,
2023. Despite its label, the Objection is essentially an unauthorized sur-reply filed without leave of court
as it responds to the arguments raised by Amiseq's Reply. The Court therefore has discretion to strike it
on its own motion or decline to consider it, which the Court would do, but for the fact that it has no
impact on the Court's ruling. Cross-Complainants shall not file any other sur-reply without leave of court
in the future.
Cross-Complainants argue in their Objection that this Demurrer is moot because they filed a Second
Amended Cross-Complaint as a matter of right under CCP 472(a). "A party may amend its pleading once
without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after
a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the
amended pleading is filed and served no later than the date for filing an opposition to the demurrer or
motion to strike." (CCP 472(a).) This right to amend a cross-complaint as a matter of right is limited to
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Case Number: 19-CIV-04630
the original version of the cross-complaint though. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564,
575-576.) Since Amiseq is demurring to the Amended Cross-Complaint and not the original Cross-
Complaint, the Court finds that Cross-Complainants do not have the right to amend as a matter of right
against Amiseq. Therefore, this Demurrer is not moot.
Turning to the merits of Amiseq's Demurrer, Amiseq demurs to the Seventh, Eighth, Tenth, Twelfth,
Fourteenth and Fifteenth Causes of Action in the Amended Cross-Complaint pursuant to CCP 430.10(a).
Amiseq contends that the Court has no jurisdiction of the claims against Amiseq because service on
Amiseq was not effectuated within three years and/or proof of service of the summons was not filed
within sixty days after as required by CCP 583.210.
However, a demurrer under 430.10(a) is brought on the ground that the Court "has no jurisdiction of
the subject of the cause of action alleged in the pleading." (CCP 430.10(a); emphasis added.) Amiseq
fails to offer any arguments as to why the Court lacks subject matter jurisdiction over the matters
alleged in the Amended Cross-Complaint, and thus has not established this basis for the demurer.
Virtually all of the pertinent authorities Amiseq relies upon are not directly on point, in that they involve
motions to dismiss. See Elling Corporation v. Superior Court (1975) 48 Cal.App.3d 89; Barrington v. A.H.
Robins Company (1985) 39 Cal.3d 146; Bishop v. Silva (1991) 234 Cal.App.3d 1317; Brookview
Condominium Owners' Association v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502;
Busching v. Superior Court (1974) 12 Cal.3d 44; Blank v. Kirwan (1985) 39 Cal.3d 311; Steciw v. Petra
Geosciences, Inc. (2020) 52 Cal.App.5th 806; and Shipley v. Sugita (1996) 50 Cal.App.4th 320.
Accordingly, to the extent that Amiseq contends that Cross-Complainants failed to timely effectuate
service and/or file proof of service under 583.210, Amiseq may have grounds for a motion to dismiss.
(See CCP 583.250 and related statutes.) The Court is mindful of its ruling appearing to honor form over
substance, but CCP 583.250(a)(2) requires a noticed motion, and this demurrer presents a slight, but
meaningful, difference in context. Thus, this ruling is without prejudice to Amiseq filing and serving a
motion to dismiss.
Amiseq has twenty days to file and serve an Answer or Motion to Dismiss, which runs from the date the
Court's ruling becomes the order
Preview
1 MATHEWS PROFESSIONAL LAW GROUP, PC Soby M. Mathews (State Bar #208317) 2 39899 Balentine Dr., Ste. #200 Newark, CA 94560 3 Telephone: (510) 498-1949 4 Attorneys for Cross Defendant: Amiseq, Inc. 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 UNLIMITED CIVIL JURISDICTION 11 BANK OF AMERICA, N.A., a national ) Case No.: 19-CIV-04630 Mathews Professional Law Group, PC 12 association, ) ) 39899 Balentine Dr., Ste. 200 Plaintiff, ) CROSS-DEFENDANT’S REQUEST FOR Newark, CA 94560 13 vs. ) JUDICIAL NOTICE IN SUPPORT OF THE ) 14 ) MOTION TO STRIKE PORTIONS OF THE CPQ SOLUTIONS, LLC, a Delaware ) CROSS-COMPLAINANTS’ SECOND 15 Limited Liability Company; ) AMENDED CROSS COMPLAINT CHRISTOPHER CAMPANILE, an ) 16 PURSUANT TO CAL. CIV. PROC. CODE § individual; NITESH ) 436 and CCP § 472(a); HISSARIA, an individual; DOES 1-100, ) 17 ) inclusive, ) 18 Defendants. ) ) 19 CHRISTOPHER CAMPANILE, an ) [Notice of Motion, Request for Judicial Notice, individual, and derivatively on behalf of ) Declaration of Soby M. Mathews, Proposed 20 ) Order and Memorandum of Points and CPQ SOLUTIONS, LLC, a Delaware ) 21 limited liability company; DAVID ESPIE, ) Authorities filed concurrently herewith] individually, and derivatively on behalf of ) 22 CPQ SOLUTIONS, LLC, a Delaware ) limited liability company, ) 23 ) ) Date: May 17, 2024 24 Cross-Complainants, ) Time: 9:00 AM vs. ) Location: Dept. 24 25 ) NITESH HISSARIA, an individual; THE ) Judge: The Hon. Jeffrey R. Finigan 26 ) CHUGH FIRM, PC, a California ) 27 professional corporation; CHUGH, LLP, a ) Complaint Filed: August 9, 2019 California limited liability partnership; ) Trial Date: None set 28 NAVNEET CHUGH, an individual; ) 1 CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS- COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a); 1 DEVSUMI REPUBLIC, LLC, a California ) limited liability company; DIGITIZE ) 2 ) SOLUTIONS, LLC, a Nevada limited ) 3 liability company; GUANQIONG WU, an ) individual; AMISEQ, INC., a Delaware ) 4 corporation; HORIZON CONSULTING, ) INC., a Washington corporation, a ) 5 ) California Corporation; BANK OF ) 6 AMERICA, a national association, and ) ROES 1-20, ) 7 ) ) Cross-Defendants, ) 8 9 10 Cross-Defendant Amiseq, Inc. hereby requests that the Court take judicial notice of the 11 following document pursuant to California Evidence Code §§ 452(d) and 453: Mathews Professional Law Group, PC 12 1. Cross-Defendant Amiseq, Inc. requests that this Court take judicial notice of the 39899 Balentine Dr., Ste. 200 document titled “Minute Order” for the Court ruling on the demurrer dated December 1, 2023, to Newark, CA 94560 13 14 discuss the merits of Cross-Defendant Navneet Chugh, the Chugh Firm PC, and Chugh LLP’s 15 (collectively referred to as “Chugh”) demurrer to Cross-Complainants Christopher Campanile and 16 David Espie, and derivatively on behalf of CPQ Solutions, LLC’s (collectively referred to as 17 “Cross-Complainants”) Amended Cross-Complaint. This document must be judicially noticed for the following reasons: Cal. Evid. Code § 452(d) provides that judicial notice may be taken of “(d) 18 Records of (1) any court of this state . . .” Cal. Evid. Code § 453 provides that [t]he trial court 19 shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives 20 each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable 21 such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient 22 information to enable it to take judicial notice of the matter. Each adverse party is provided 23 sufficient notice of the request through the service upon them of this Request for Judicial Notice. 24 The foregoing description furnishes the Court with sufficient information to enable it to take 25 judicial notice of the matter. These are records of the clerk of this Court pertaining to the above- 26 captioned case which are available on the court docket, and are attached hereto as Exhibit A 27 28 2 CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS- COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a); 1 which has the title “Minute Order” as the true and correct copy of the ruling on Cross-Defendant 2 Chugh’s demurrer. The ruling is dated December 1, 2023. 3 2. Cross-Defendant Amiseq, Inc. requests that this Court take judicial notice of the 4 document titled “Minute Order” for the Court ruling on Chugh’s motion to strike dated December 5 1, 2023, to discuss the merits of Cross-Defendant Chugh’s motion to strike portions of Cross- 6 Complainants’ Amended Cross-Complaint. This document must be judicially noticed for the 7 following reasons: Cal. Evid. Code § 452(d) provides that judicial notice may be taken of “(d) 8 Records of (1) any court of this state . . .” Cal. Evid. Code § 453 provides that [t]he trial court 9 shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives 10 each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable 11 such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient Mathews Professional Law Group, PC 12 39899 Balentine Dr., Ste. 200 information to enable it to take judicial notice of the matter. Each adverse party is provided Newark, CA 94560 13 sufficient notice of the request through the service upon them of this Request for Judicial Notice. 14 The foregoing description furnishes the Court with sufficient information to enable it to take 15 judicial notice of the matter. These are records of the clerk of this Court pertaining to the above- 16 captioned case which are available on the court docket, and are attached hereto as Exhibit B 17 which has the title “Minute Order” as the true and correct copy of the ruling on Cross-Defendant 18 Chugh’s motion to strike. The ruling is dated December 1, 2023. 19 3. Cross-Defendant Amiseq, Inc. requests that this Court take judicial notice of the 20 document titled “Minute Order” for the hearing on the demurrer held on January 19, 2024, to 21 discuss the merits of Amiseq’s demurrer to Cross-Complainants’ Amended Cross-Complaint. This 22 document must be judicially noticed for the following reasons: Cal. Evid. Code § 452(d) provides 23 that judicial notice may be taken of “(d) Records of (1) any court of this state . . .” Cal. Evid. 24 Code § 453 provides that [t]he trial court shall take judicial notice of any matter specified in 25 Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, 26 through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; 27 and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the 28 3 CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS- COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a); 1 matter. Each adverse party is provided sufficient notice of the request through the service upon 2 them of this Request for Judicial Notice. The foregoing description furnishes the Court with 3 sufficient information to enable it to take judicial notice of the matter. These are records of the 4 clerk of this Court pertaining to the above-captioned case which are available on the court docket, 5 and are attached hereto as Exhibit C which has the title “Minute Order” as the true and correct 6 copy of the hearing on the demurrer. The date of the hearing was held on January 19, 2024. 7 8 MATHEWS PROFESSIONAL LAW Date: January 26, 2024 GROUP, PC 9 10 11 ____________________________ Mathews Professional Law Group, PC 12 Soby M. Mathews, Esq. 39899 Balentine Dr., Ste. 200 Attorneys for Cross Defendant Newark, CA 94560 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS- COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a); 1 2 3 4 5 6 7 8 9 10 11 Mathews Professional Law Group, PC 12 39899 Balentine Dr., Ste. 200 Newark, CA 94560 13 14 EXHIBIT A 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS- COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a); Case Number: 19-CIV-04630 SUPERIOR COURT OF SAN MATEO COUNTY 400 County Center 1050 Mission Road 800 North Humboldt Street Redwood City, CA 94063 South San Francisco, CA 94080 San Mateo, CA 94401 www.sanmateo.courts.ca.gov Minute Order BANK OF AMERICA, N.A., a national association vs. CHRISTOPHER 19-CIV-04630 CAMPANILE, et al 12/01/2023 9:00 AM Hearing on Demurrer Hearing Result: Held Judicial Officer: Finigan, Jeffrey R. Location: Courtroom 2F Courtroom Clerk: Erica Boffi Courtroom Reporter: Parties Present Exhibits Minutes Journals Case Events - No appearance by any parties or their counsel of record. - Tentative ruling adopted and becomes order: Cross-Defendants Navneet Chugh, the Chugh Firm PC, and Chugh LLP's ("Cross-Defendants" or "Chugh") Demurrer to Cross-Complainants Christopher Campanile et. al.'s Amended Cross-Complaint (AXC), filed June 20, 2023, is ruled upon as set forth below. Chugh refers in its briefing to the Amended Cross-Complaint as the "Second Amended Cross-Complaint, or "SAXC." This Order refers to it as the AXC. The AXC asserts seventeen (17) total causes of action, eight (8) of which are asserted against the Chugh Cross-Defendants. Chugh has demurred to all eight of these claims. The AXC identifies three Cross-Complainants: (1) CPQ Solutions, LLC ("CPQ") (2) Christopher Campanile, and (3) David Espie. On its face, the AXC does not identify which of the three Cross-Complainants is asserting each of the 17 causes of action, which tacitly suggests that all three Cross-Complainants are asserting all 17 cross-claims. As to the Sixth Cause of Action ("indemnity"), the demurrer is SUSTAINED-in-part and OVERRULED-in- part. (CCP 430.10(e).) The Court disagrees with Cross-Complainants' waiver argument for lack of supporting authority. Cross- Complainants argue that because the original Cross-Complaint asserted an indemnity claim against Chugh, and because Chugh filed an Answer to the original Cross-Complaint rather than a demurrer, Chugh has waived the right to demur to the AXC's indemnity cause of action. Cross-Complainants cite no authority supporting this argument, including no case finding a waiver under these circumstances. Code Civ. Proc. 430.41(b) provides for a waiver under somewhat analogous circumstances, but it does not apply here, because the Court did not previously rule on a demurrer to the original Cross-Complaint. Further, Chugh's Reply cites to CCP 430.80, which contradicts the waiver argument. As to Cross-Complainant CPQ, the demurrer is OVERRULED. "The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the 1 Case Number: 19-CIV-04630 indemnitee for which the indemnitor is ... equitably responsible." (Bailey v. Safeway, Inc. (2017) 199 Cal.App.4th 206, 217.) Here, CPQ appears to seek "equitable indemnity," since no contractual indemnity is alleged, nor appears applicable. As noted below, the Court is overruling the demurrer with respect to CPQ's claims for breach of fiduciary duty and professional negligence. Such claims could, potentially, support CPQ's claim for indemnity against Chugh. As to Cross-Complainants Campanile and Espie, the demurrer is SUSTAINED with leave to amend, on grounds that Campanile and Espie have asserted no valid claims against Chugh that can serve as the predicate basis for an "indemnity" claim. Further, as to Cross-Complainant Espie, Bank of America's Complaint in this case does not name Mr. Espie as a defendant. Espie cites no authority, and makes no argument in his Opposition brief, that an indemnity cause of action has any application where the party seeking indemnification (Espie) is not being sued, and thus, is not subject to any potential liability. As to the Seventh and Eighth Causes of Action ("fraudulent or voidable transfer"), the Demurrer is SUSTAINED with leave to amend. (CCP 430.10(e).) Preliminarily, the Cross-Complainants waiver argument is rejected for the same reasons previously stated. Both fraudulent transfer causes of action require fraudulent intent. See Yaseu Electronics Corp. v. Tamura (1994) 28 Cal.App.4th 8, 13 ("A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim."); Civ. Code 3439.04(a)(1) ("A transfer of property by a debtor is voidable if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor."); CACI No. 4200, 4201, 4202; Aghaian v. Minassian (2020) 59 CalApp.5th 447, 455, n. 8.) Chugh argues that the AXC is entirely conclusory with respect to the allegations against Chugh, and that it alleges no facts supporting the conclusory allegation that Chugh had actual and/or constructive knowledge of Hissaria's alleged wrongful acts (i.e., Hissaria's alleged efforts to steal funds from CPQ). The Court agrees that these allegations against Chugh are conclusory. Although the AXC alleges in a conclusory manner that all Cross-Defendants, including Chugh, had "full knowledge" of Hissaria's wrongful acts (see 16) and that they "conspired" with Hissaria to commit his wrongful acts, the AXC alleges no facts pertaining to Chugh that would allow a reasonable fact finder to reach that conclusion. The AXC alleges that Chugh received $203,000 to represent Mr. Hissaria, and that the funds were wired from a bank account belonging to CPQ. (See 36-39.) It alleges that Chugh later returned $178,000 back to Hissaria at Hissaria's request, even though the funds rightfully belonged to CPQ and not Hissaria. (Id.) Although the AXC alleges (at 175) that Campanile advised Chugh the retainer was transferred "without authorization" and should be returned to CPQ, it alleges no facts that Chugh was aware Hissaria was stealing from CPQ or that Chugh had any fraudulent intent. As to the Tenth, Twelfth, and Fourteenth Causes of Action ("aiding & abetting" breach of fiduciary duty, corporate waste, and conversion), the Demurrer is SUSTAINED with leave to amend. (CCP 430.10(e).) "[L]iability may ... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person." (Casey v. U.S. Bank National Ass'n (2005) 127 Ca4th 1138, 1144." "[A] defendant can only aid and abet another's tort if the defendant knows what 'that tort' is." (Id., at 1146 (citations omitted).) The aiding and abetting claims require factual allegations supporting the conclusion that Chugh knew about, and intended to encourage and/or assist, Hissaria's alleged theft of CPQ's funds. As stated above, the AXC alleges no facts, as opposed to conclusions, that Chugh knew about Hissaria's wrongful acts or intentions, and intended to aid or assist in Hissaria's alleged theft of CPQ assets. As to the Sixteenth Cause of Action ("breach of fiduciary duty"), the Demurrer is SUSTAINED-in-part and OVERRULED-in-part. (CCP 430.10(e).) As to Cross-Complainant CPQ, the demurrer is OVERRULED. The AXC alleges that CPQ Solutions, LLC ("CPQ") retained Chugh as its counsel during the relevant periods in the AXC, and thus, that Chugh owed fiduciary duties to CPQ. (AXC, 6, 14, 37, 163, 167.) Chugh's Demurrer primarily argues that this breach of fiduciary duty claim is uncertain and fails to state a cause of action "as to CAMPANILE or ESPIE." (Demurrer at pp. 10-11.) Specifically, Chugh argues that the AXC's allegations are inconsistent and/or unclear as to whether Campanile and/or Espie, individually, ever retained Chugh as their individual 2 Case Number: 19-CIV-04630 counsel, and thus, the alleged facts do not clearly establish any attorney-client (and hence, any fiduciary) relationship between Chugh and Campanile and/or Espie in their individual capacities. Because the AXC clearly alleges that CPQ retained Chugh as its counsel, and thus, that Chugh owed fiduciary duties to CPQ, which Chugh does not appear to dispute, as to Cross-Complainant CPQ, the demurrer to this cause of action is overruled. The AXC at paragraph 175 alleges that Chugh was put on notice prior to transferring funds to Hissaria that the funds belonged to CPQ and were to be returned to CPQ. Nevertheless, Chugh followed Hissaria's instructions and returned the funds to Hissaria instead of CPQ. As to Cross-Complainants Campanile and Espie, the demurrer is SUSTAINED with leave to amend, on grounds that the AXC does not sufficiently allege the existence of an attorney-client (and hence, fiduciary) relationship between Chugh and Campanile and/or Espie. (CCP 430.10(e).) The alleged fiduciary relationship is an alleged attorney-client relationship. Because the AXC does not allege an attorney-client relationship between Chugh and Espie or Campanile as individuals, the demurrer is sustained with leave to amend. The Opposition brief further clouds this issue by arguing that Campanile and Espie "bring this suit derivatively on behalf of nominal cross-defendant CPQ." (See AXC 21.) This argument appears to suggest that Campanile and Espie are not asserting this professional negligence claim in their individual capacities. If Campanile and Espie only intend to assert this (malpractice) claim derivatively on behalf of CPQ (the LLC), and not in their individual capacities, the AXC should make that clear, which it does not. As to Cross-Complainant Espie, the AXC does not allege the existence of an attorney-client (fiduciary) relationship between Chugh and Espie. The AXC claims that CPQ assigned its rights to Campanile and Espie to assert CPQ's malpractice claim. (AXC 22.) Legal malpractice claims are not assignable. (See Baum v. Duckor, Spradling & Metzger (1999) 72 Cal.App.4th 54, 65.) As to the Seventeenth Cause of Action ("professional negligence"), the Demurrer is SUSTAINED-in-part and OVERRULED-in-part. (Code Civ. Proc. Sect. 430.10(e)) As to Cross-Complainant CPQ, the demurrer is OVERRULED, for the same reasons stated vis a vis the 16th cause of action. As to Cross-Complainants Campanile and Espie, the demurrer is SUSTAINED for the same reasons stated vis a vis the 16th cause of action. Any further amended Cross-Complainant shall be filed within 10 days of notice of entry of the formal order on this demurrer. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Cross Defendant (Chugh) shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. Others Comments: Future Hearings and Vacated Hearings December 01, 2023 9:00 AM Motion to Strike Courtroom 2F Boffi, Erica Finigan, Jeffrey R. Smith, Rhiannon December 14, 2023 2:00 PM Informal Discovery Conference Mau, Michael L. Courtroom H 3 Case Number: 19-CIV-04630 January 05, 2024 9:00 AM Hearing on Demurrer Courtroom 2F Boffi, Erica Finigan, Jeffrey R. January 18, 2024 4:00 PM Informal Discovery Conference Mau, Michael L. January 26, 2024 9:00 AM Motion to Compel Further Courtroom 2F Boffi, Erica Finigan, Jeffrey R. January 29, 2024 9:00 AM Case Management and Trial Setting Conference Courtroom 2F Boffi, Erica Finigan, Jeffrey R. February 02, 2024 9:00 AM Motion to Compel Further Courtroom 2F Boffi, Erica Finigan, Jeffrey R. February 02, 2024 9:00 AM Motion to Compel Further Courtroom 2F Boffi, Erica Finigan, Jeffrey R. 4 1 2 3 4 5 6 7 8 9 10 11 Mathews Professional Law Group, PC 12 39899 Balentine Dr., Ste. 200 Newark, CA 94560 13 14 EXHIBIT B 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS- COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a); Case Number: 19-CIV-04630 SUPERIOR COURT OF SAN MATEO COUNTY 400 County Center 1050 Mission Road 800 North Humboldt Street Redwood City, CA 94063 South San Francisco, CA 94080 San Mateo, CA 94401 www.sanmateo.courts.ca.gov Minute Order BANK OF AMERICA, N.A., a national association vs. CHRISTOPHER 19-CIV-04630 CAMPANILE, et al 12/01/2023 9:00 AM Motion to Strike Hearing Result: Held Judicial Officer: Finigan, Jeffrey R. Location: Courtroom 2F Courtroom Clerk: Erica Boffi Courtroom Reporter: Parties Present Exhibits Minutes Journals Case Events - No appearance by any parties or their counsel of record. - Tentative ruling adopted and becomes order: For the reasons stated below, Cross-Defendants Navneet Chugh, the Chugh Firm PC, and Chugh LLP's ("Cross-Defendants" or "Chugh") Motion to Strike portions of Cross-Complainants Christopher Campanile et. al.'s Amended Cross-Complaint (AXC), filed June 20, 2023, is GRANTED-in-part and DENIED-in-part as follows: As to the Motion to Strike AXC 15 - 17 (in the entirety for each) the Motion to Strike is GRANTED with leave to amend. The AXC's allegation that Chugh is the "alter ego" of all other Cross-Defendants, and otherwise liable for the acts of all other Cross-Defendants, is conclusory and unsupported by sufficient facts. "The basic rule stated by our Supreme Court as a guide in the application of [the] doctrine [of alter ego] is as follows: The two requirements are (1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow." Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 837 (citations omitted). The familiar litany of factors showing alter ego include the commingling of funds; unauthorized diversion of corporate funds to other than corporate uses; "treatment by an individual of the assets of the corporation as his own"; "failure to maintain minutes or adequate corporate records"; identical equitable ownership in entities; failure to adequately capitalize corporation; "absence of corporate assets and undercapitalization"; "use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual"; "diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors"; "the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another"; "contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability"; and "use of a corporation to transfer to it the existing liability of another person or entity." Id., at pp. 838-840 (citations omitted). The AXC alleges no facts supporting the conclusion that Chugh can be considered/deemed the "alter ego" of any of the other named or unnamed Cross-Defendants, nor 1 Case Number: 19-CIV-04630 otherwise liable for their acts. As to the Motion to Strike AXC 19 (lines 22-27) and 20 (in its entirety) the Motion to Strike is DENIED. Those paragraphs not appear to apply to Chugh. Indeed, paragraph 20 specifically states it is made "with the exception of Chugh." As to the Motion to Strike 120, 126, 137, 147, 157, 182, and 188 (in their entirety as to each) and 4 of the Prayer for Relief, all of which allege bases for punitive damages and a request punitive damages, the Motion to Strike is GRANTED with leave to amend. Civ. Code 3294 permits a request for punitive damages where the pleading alleges facts sufficient to support a finding of malice, fraud, or oppression. The demurrer is being sustained as to all claims asserted by Cross-Complainants Campanile and Espie, and thus their request for punitive damages fails. As to CPQ, although its claims against Chugh for professional negligence, breach of fiduciary duty, and indemnity survive the demurrer, the AXC alleges no facts pertaining to Chugh that permit the conclusion that Chugh is guilty of malice, fraud, or oppression. Accordingly, the Motion to Strike is granted. As to the Motion to Strike 7 of the Prayer for Relief for attorney's fees, the Motion to Strike is GRANTED with leave to amend. The AXC cites no statute or contract that provides a basis for recovering attorney's fees from Chugh. Chugh is not a party to the Line of Credit Agreement referenced in the Opposition brief. Any further amended Cross-Complainant shall be filed within 10 days of notice of entry of the formal order on this Motion to Strike. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Cross Defendant (Chugh) shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court. Others Comments: Future Hearings and Vacated Hearings December 01, 2023 9:00 AM Hearing on Demurrer Courtroom 2F Boffi, Erica Finigan, Jeffrey R. Smith, Rhiannon December 14, 2023 2:00 PM Informal Discovery Conference Mau, Michael L. Courtroom H January 05, 2024 9:00 AM Hearing on Demurrer Courtroom 2F Boffi, Erica Finigan, Jeffrey R. January 18, 2024 4:00 PM Informal Discovery Conference Mau, Michael L. January 26, 2024 9:00 AM Motion to Compel Further Courtroom 2F Boffi, Erica Finigan, Jeffrey R. 2 Case Number: 19-CIV-04630 January 29, 2024 9:00 AM Case Management and Trial Setting Conference Courtroom 2F Boffi, Erica Finigan, Jeffrey R. February 02, 2024 9:00 AM Motion to Compel Further Courtroom 2F Boffi, Erica Finigan, Jeffrey R. February 02, 2024 9:00 AM Motion to Compel Further Courtroom 2F Boffi, Erica Finigan, Jeffrey R. 3 1 2 3 4 5 6 7 8 9 EXHIBIT C 10 11 Mathews Professional Law Group, PC 12 39899 Balentine Dr., Ste. 200 Newark, CA 94560 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 CROSS-DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE MOTION TO STRIKE PORTIONS OF THE CROSS- COMPLAINANTS’ SECOND AMENDED CROSS COMPLAINT PURSUANT TO CAL. CIV. PROC. CODE § 436 and CCP § 472(a); Case Number: 19-CIV-04630 SUPERIOR COURT OF SAN MATEO COUNTY 400 County Center 1050 Mission Road 800 North Humboldt Street Redwood City, CA 94063 South San Francisco, CA 94080 San Mateo, CA 94401 www.sanmateo.courts.ca.gov Minute Order BANK OF AMERICA, N.A., a national association vs. CHRISTOPHER 19-CIV-04630 CAMPANILE, et al 01/19/2024 9:00 AM Hearing on Demurrer Hearing Result: Held Judicial Officer: Finigan, Jeffrey R. Location: Courtroom 2F Courtroom Clerk: Erica Boffi Courtroom Reporter: Rhiannon Smith Parties Present BROWN, MICHAEL W. Attorney MATHEWS, SOBY M. Attorney POLARD, STEVEN G.F. Attorney Exhibits Minutes Journals Case Events - Matter is called at: 9:09 AM - Party appeared by audio and/or video; Attorney: POLARD, STEVEN G.F.; Attorney: MATHEWS, SOBY M.; Attorney: BROWN, MICHAEL W.; Monica Zafra (observing) - Argument Presented by Counsel. Matter Submitted. - Tentative ruling adopted and becomes order: The Demurrer of Cross-Defendant Amiseq, Inc. ("Amiseq") to the Amended Cross-Complaint of Christopher Campanile and David Espie, individually and derivatively on behalf of CPQ Solutions, LLC ("Cross-Complainants"), is OVERRULED. Cross-Complainants did not file an opposition to this Demurrer, but filed a Notice of Filing of Second Amended Cross-Complaint on December 21, 2023 and an Objection to Amiseq's Reply on December 28, 2023. Despite its label, the Objection is essentially an unauthorized sur-reply filed without leave of court as it responds to the arguments raised by Amiseq's Reply. The Court therefore has discretion to strike it on its own motion or decline to consider it, which the Court would do, but for the fact that it has no impact on the Court's ruling. Cross-Complainants shall not file any other sur-reply without leave of court in the future. Cross-Complainants argue in their Objection that this Demurrer is moot because they filed a Second Amended Cross-Complaint as a matter of right under CCP 472(a). "A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike." (CCP 472(a).) This right to amend a cross-complaint as a matter of right is limited to 1 Case Number: 19-CIV-04630 the original version of the cross-complaint though. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 575-576.) Since Amiseq is demurring to the Amended Cross-Complaint and not the original Cross- Complaint, the Court finds that Cross-Complainants do not have the right to amend as a matter of right against Amiseq. Therefore, this Demurrer is not moot. Turning to the merits of Amiseq's Demurrer, Amiseq demurs to the Seventh, Eighth, Tenth, Twelfth, Fourteenth and Fifteenth Causes of Action in the Amended Cross-Complaint pursuant to CCP 430.10(a). Amiseq contends that the Court has no jurisdiction of the claims against Amiseq because service on Amiseq was not effectuated within three years and/or proof of service of the summons was not filed within sixty days after as required by CCP 583.210. However, a demurrer under 430.10(a) is brought on the ground that the Court "has no jurisdiction of the subject of the cause of action alleged in the pleading." (CCP 430.10(a); emphasis added.) Amiseq fails to offer any arguments as to why the Court lacks subject matter jurisdiction over the matters alleged in the Amended Cross-Complaint, and thus has not established this basis for the demurer. Virtually all of the pertinent authorities Amiseq relies upon are not directly on point, in that they involve motions to dismiss. See Elling Corporation v. Superior Court (1975) 48 Cal.App.3d 89; Barrington v. A.H. Robins Company (1985) 39 Cal.3d 146; Bishop v. Silva (1991) 234 Cal.App.3d 1317; Brookview Condominium Owners' Association v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502; Busching v. Superior Court (1974) 12 Cal.3d 44; Blank v. Kirwan (1985) 39 Cal.3d 311; Steciw v. Petra Geosciences, Inc. (2020) 52 Cal.App.5th 806; and Shipley v. Sugita (1996) 50 Cal.App.4th 320. Accordingly, to the extent that Amiseq contends that Cross-Complainants failed to timely effectuate service and/or file proof of service under 583.210, Amiseq may have grounds for a motion to dismiss. (See CCP 583.250 and related statutes.) The Court is mindful of its ruling appearing to honor form over substance, but CCP 583.250(a)(2) requires a noticed motion, and this demurrer presents a slight, but meaningful, difference in context. Thus, this ruling is without prejudice to Amiseq filing and serving a motion to dismiss. Amiseq has twenty days to file and serve an Answer or Motion to Dismiss, which runs from the date the Court's ruling becomes the order