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SUPERIOR COURT OF CALIFORNIA - COUNTY 0F FRESNO Entered by:
Civil Department - Non-Limited
TITLE 0F CASE:
Richard Best Transfer, Inc vs. Archer Daniels Midland Company
Case Number:
CORRECTED LAW AND MOTION MINUTE ORDER 17CECGo1022
'
Hearing Date: May 14, 2018 Hearing Type: Demurrer (x2), Motion - Strike,Motion - Quash
Department: 401 (Chambers) Judge/Temp. Judge: Simpson, Alan
Court Clerk: Faulkner, Marvel Reporter/Tape: NIA
Appearing Parties: No Appearances
Plaintiff: Defendant:
Counsel: Counsel:
[ ]
Off Calendar
[ ]Continued to [
]Setfor __ at _ Dept._ for _
[
]Submitted on points and authorities with/without argument. [ ]
Matter is argued and submitted. I
[ ]
Upon filing of points and authorities.
[ ]Motion isgranted [ ]in part and denied in part. [
]Motion isdenied [
]with/withoutprejudice.
[x ] Taken out from under submissionladvisement (February 22, 2018)
[
]Demurr-er [
]overruled [
]sustained with _ daysto [
]answer [ ]amend
[x] Tentative ruling becomes the order of the court. No further order is necessary.
[x] Pursuant to CRC 391(a) and CCP section 101 9.5(a), no further order is necessary. The minute order
adopting the tentative ruling serves as the order of the court.
[x] Service by the clerk will constitute notice of the order.
[x ] See attached copy of the Tentative Ruling.
[ ]
Judgment debtor_ sworn and examined.
[ ]
Judgment debtor _ failed to appear.
Bench warrant issued in the amount of $ _
JUDGMENT:
[ ]Money damages [ ]Default [
]Other _ entered in the amountof:
Principal $_ lnterest$_ Costs $_ Attorney fees $_ Total $_
[
]Claim of exemption [ ]granted [
]denied. Court orders withholdings modified to $_ per_
FURTHER, COURT ORDERS:
[ ]Monies held by levying officerto be [
]releasedtojudgmentcreditor. [
]returnedtojudgmentdebtor.
[ ]$__ to be released to judgment creditor and balance returned to judgment debtor.
[ ]
Levying Officer, County of __. notified. [
]Writto issue
[ ]
Notice to be filed within 15 days. [ ]
Restitution of Premises
[
]Other: _
CV-14b E04-16 LAW AND MOTION MINUTE ORDER
|-__.|-A.._. r'_.__
(17)
-
Tentative Ruling
Re: Richard Best Transfer, Inc. v. Archer Daniels Midland Company, ef
al.
Court Case No. 17 CECG 01022
Hearing Dofe: January 30, 2018 (Dept. 503) -
Motion: Richard Best's, Wyofi Best's and Por’rof Ivory's Mofion To Quosh
Tentative Ruling:
To deny.
Explanation:
The Civil Discovery Act provides 1th o personal service of c deposifion
subpoena may command a ’rhird party deponen’r To produce business records on
request. (Code Civ. Proc., § 2020.020, subd. (c).) Code of Civil Procedure secfion
1987.1 provides, in relevant part: "Ifo subpoeri'o requires The attendance of o wh‘ness
or The producfion of books, documents, electronically stored information, or other
Things of The Taking of c1 deposiTion, The courT, Upon moTion reasonably mode by any
person described in subdivision (b) may make an order direcTing compliance wiTh
iTupon Those Terms or condiTions as The courT shall declare, including proTecTive orders."
(Code Civ. Proc.,§ 1987.1,subd. (0).)
The Mofion isNoT UnTimer
ADM conTends This moTion isunTimely as iT was filed six monThs afTer The daTe seT
for producTion. However, This facT does noT deprive The court of jurisdicTion To rule on
The moTion. (In re R.R. (2010) 187 Cal.App.4Th 1264, 1278; Slagle v. Superior Court (1989)
211 Cal.App.3d 1309, 1312.)
The MoTion Does NoT Require a Separate STaTemenT
ADM argues The moTion should be denied because 1T conTains no separaTe
sTaTemenT seTTing forTh The parTicuIar documenTs or demands aT issue and The TacTual
and legal reasons why producTion should noT be compelled. (Cal. Rule of CourT, rule
3.1345(a)(5).) However, because Rule of CourT 3.1345 does noT require a separaTe
sTaTemenT on a moTion To quash a subpoena, The courT would be remiss in denying The
moTion for failure To include one.
The Subpoena Will NoT be Quashed
Cross-defendanTs claim Their Richard BesT's and Richard BesT Transfer‘s financial
informaTion is privaTe, and noT reievanT To The claims and defenses in This acTion.
In Williams v. Superior Coun‘ (201 7) 3 COLS’rh 531 (Williams), The California Supreme Court
reaffirmed The Test for evaluating potential invasions of privacy expressed in Hill v.
National Collegiate Athletic: Assn. (1994) 7 Col.4Th I (Hill). The'porfy
Firs’r, asserting a
privacy righf mus’r establish c1 legally proTec’red privacy inferes’r, on objectively
reasonable expecfo’rion of privacy in ’rhe given circumstances, cmd o Threatened
in’rrusion That isserious. (Id. OT pp. 35-37.) Second, ’rhe party seeking information may
raise in response whatever legifimofe and important countervailing interests disclosure
serves, while The porTy seeking proTecTion may idenTify feasible olTernoTives ThaT serve
The some inTeresTs or proTecTive measures ThoT would diminish The loss of privacy.
Finally, The courT musT Then balance These compeTing consideroTions. (Id. 0T pp. 37—40;
see Williams, supra, 0T p. 553.)
Generally, financial informoTion is priche. (Valley Bank of Nevada v. Superior
Coun‘ (1975) 15 Col.3d 652, 656.) Cross—defendonTs do noT ciTe, or QTTempT To apply The
Hill or Williams TesT. However, cross—defendanTs' expecToTion of privacy in Their bank
records isobjecTively reasonable 0nd The proposed inTrusion is serious. (Id. 0T p. 656-
657.)
However, The records ore highly reievonT To The IiTigaTion. ADM claims RBT,
Through iTs direcTors/officers Richard BesT, WyoTT BesT, 0nd Charles LiTTIefieId,used iTs puT—
Through cgreemenT wiTh ADM To induce ADM To provide feed pelIeT invenTory To wiTh
The false preTense 0nd inTenTion To diverT significanT porTs of iTTo uncUThorized 0nd
fraudulenT sales and To allow RBT To reTain The proceeds of Those soles and spliT Them
wiTh oTher defendonTs, oii The Time concealing from ADM and misreporTing To ADM The
True sToTe of soles of iTs producT.
'
ADM alleges ThoT RBT perpeTroTed The fraud and concealmenT 0nd The
predicoTe ocTs of rockeTeering acTiviTy Through The deToiled allegoTions of c:cTions of
RBT's officers/direcTors Richard BesT, WyoTT BesT, 0nd LiTTIefieId, as weil cs former ADM
employees Shown Sowo and NoTosho Dukes, which included paying illegal kickbacks
To Sowo and Dukes for Their roles in The scheme, 0nd uTiIizing Thomas Scoife 0nd his
company To broker and manage illegally diverTed soles of ADM producT, oil To on
esTimoTed loss of revenue of in excess of $3.5 million.
Here, The subpoena is direchy relevch To The allegaTions of The cross-comploinT.
MoTTer is "direcTiy relevonT" where iT is essenTioI To deTermining The TruTh of The moTTers in
dispuTe. (BriTT v.Superior CourT (i 978) 20 Col§3d 844, 859-862.) There isno beTTer way To
prove wheTher, and To wth degree, one's cross-defendonTs did business wiTh each
oTher Than To subpoena The ‘records from The accounTs wiTh which They did business
wiTh each oTher.
Cross-defendcst raise a cursory objecTion regarding Third porTy privacy inTeresTs
regarding Their cusTomers 0nd business partners, bUT foil To orTiculoTe how incidenTal
informoTion regarding pcymenTs by cusTomers 0nd or poymenTs To vendors in The
ordinary course of business could be sufficienTiy privoTe To prevenT iTs discovery where
The caTegory of discovery is direcTiy relevanT.
The subpoena is neither over brood nor vogue. To The contrary, i1 specifies that
only documents relating To accounts connected To co—defendcm‘s should be
pr'oduced. H is no’r a fishing expedition for every financial document relo’red To Richard
Best or Richard Best Transfer, or every paper possessed by ’rhe deponen’r, os in The'
manner of The subpoena in Calcor Space Facilh‘y, Inc. v. Superior Court (1997) 53
Cal.AppAth 216. The Calcor court Then foundlthof “a blonkef demand hardly
constitutes 'reosonoble‘ particularity.” (lbid.) Because The Colcor subpoena could be
read 1‘0 simply require The producing pdrTy To produce everyThing in iTs possession which
in any way reloTed To The subjeCT of The liTigoTion, There was no indicoTIon ThoT The
coTegories bore any relaTion To The manner which The Third parTy kepT iTs records. Here.
The deponenT did noT indicaTe iT had any difficulTy complying wiTh The subpoena and
sTaTed iT would produce records unless a mofion was broughT. (Mosqueda Decl. 1] 5; Ex.
C.) There is no Calcor problem wiTh This subpoena.
PursuanT To California Rules of CourT, rule 3.1312(a) and Code of Civil Procedure
secTion 1019.5, subdivision (a), .no furTher wriTTen order is necessary. The minUTe order
adopTing This TenTaTive ruling will serve as The order of The courT and service by The clerk
will consTiTUTe noTice of The order.
Lemma
issued By: on Vfi/g _
l
ginmals) (Dole)
(17) Tentative Ruling
Re: Richard Best Transfer, Inc. v. Archer Daniels Midland Company, et
al.
Cour’r Case No. 17 CECG O1 022
Hearing Date: January 30, 2018 (Dep’r. 503)
Motion:
1) Archer Daniels Midland Company's Demurrer ’ro FirstAmended
Complaint
2) Archer Daniels Midland Company's Motion To Strike Various
Portions of First Amended Complaint
3) Richard Bes’r Transfer, lnc.'s Demurrer ’ro Archer Daniels Midland
Company's FirstAmended Cross—Comploinf
Tentative Ruling:
As ’ro ADM's Demurrer to The Firs’rAmended Complaint: fo overrule The general
demurrer cs ’roThe firsTcause of ccTion. To susToin The general demurrer wiTh leove To
'
amend as To The Third 0nd fourTh causes of ocTion.
As To ADM's MoTion To STrike The FirsT Amended Complaint To deny as To puniTive
damages 0nd rescission. To gronT os To The prayer for occounTing wiTh leave To amend.
As To RBT's Demurrer To FirsT Amended Cross—ComplroinT: To susToin wiTh leave To
amend cs To The TenTh cause of ocTion. To susToin wiThouT leave cs To The elevenTh
cause. of ocTion.
All new pleadings shall be filed 0nd served wiThin 10 days of The clerk‘s service of
This minUTe order. EoCh new allegoTion shall be in boldface Type fonT.
ExplanaTion:
ADM's Demurrer To FirsT Amended Complaint
FirsT Cause of AcTion — Promissory Fraud
”
‘The elemenTs of fraud, which give rise To The TorT ocTion for deceiT, ore (o)
misrepresenToTion (false represenToTion, concealmenT, or nondisclosure); (b) knowledge
of folsiTy (or “scienTer"); (c) inTenT To defraud, i.e., To induce reliance; (d) jusTifioble
reliance; 0nd (e) resulTing domage.’ [CiToTions.] [1)]‘Promissory froud' isa subspecies of
The ocTion for fraud 0nd deceiT. A promise To do someThing necessarily implies The
inTenTion To perform; hence, where a promise is mode wiThouT such inTenTion, There is on
implied misrepresenToTion of focT ThoT moy be ocTionoble fraud. [CiToTions.] [1)] An
ocTion for promissory fraud moy lie where o defendonT froudulenle induces The ploinTiff
To enTer inTo o conTrocT." (Lazar v. Superior CourT (i996) i2 Col.4Th 631, 638.) Eoch
element of promissory fraud mus’r be pled wi’rh particularity. (Beckwifh v. Dohl (2012)
“ '
205 Col.App.4’rh 1039, 1060.) In particular, The plaintiff must allege wi’rh particularity
“fdcfs which show how, when, where, To whom, 0nd by what means The
' "
represem‘o’rions were tendered.” (Lazar v. Superior Court, supra, 12 Col.4’rh o’r p. 645.)
Against o corporate defendant, The pleading musT allege The name of The person who
mode The represenToTion, his or her ouThoriTy To speak, To whom he or she spoke, and
how The represenToTion was communicoTed. (Tormonn v. SToTe Form MUT. AUTO. Ins. Co.
{1991) 2 Col.App.4Th 153, 157.)
Each elemenT of o fraud cause of ocTion musT be pleaded wiTh porTiculoriTy so
cs To apprise The defendonT of The specific grounds for The charge 0nd enable The
courT To deTermine wheTher There isony basis for The cause of ocTion. (CommiTTee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Col.3d 197, 216—217.) Here,
ADM claims ThoT RBT has foiled To allege The fdcTs seTTing forTh circumsTonces
surrounding The alleged fraud, reasonable reliance, 0nd lock of inTenT To perform on
ADM's porT.
As for The circumsTonces of The misrepresenToTions, The FAC adequoTely alleges
in paragraph 15 ThoT Shawn Sowcl in his copociTy os ADM's CommodiTy Manager 0nd
NoTosho Dukes in her copociTy os mode demands in person in meeTing 0nd Telephone
coils wiTh Richard BesT of RBT on 46 specific doTes 0nd on more Thon 50 occasions.
As for reliance, ADM makes on inTeresTing orgumenT ThaT RBT could noT hove
reasonably relied on any sToTemenT by Sowo because Sowe/ADM sTorTed demanding
money by 2008 before The 201 1 firsTPUT—Through AgreemenT 0nd sToTed, in negoTioTing
The second PUT—Through AgreemenT ThoT The demands would evenTuoliy slow or sTop
because of The money ADM would moke off roilcor incenTives. (See FAC oT 111131—33.)
in oTher words, RBT knew going inTo The second PuT—Through AgreemenT ThoT There
would be more pdymenT demdnds; dT besT They would merely slow. In fdcT, RBT orgues
The FAC olleges They did slow from 2014 To 2016. This is o good orgumenT Tth RBT did
noT reosondbly rely on ADM's promise To fdiThfully perform iTs second PuT—Through
performance. However, iTdoes noT dispose of on enTire couse of dcTion os The couse
of ocTion combines boTh AgreemenTs.
porogrdph
As for pleading
34 os o
ADM's
conclusion.
lock of inTenT
Porogrdph
To
31
perform,
odequoTely
The FAC
olleges
pledds
Tth d
eo
lock of
ond
inTenT
Dukes
in
in
To
on
Their officiol
RBT if The
ogenT of
roles
ADM,
os
demdnds were
This
ADM
is
employees
noT meT.
some
As
ollegoTion
d
mode
eo
ThoT
demands
negoTidTed
ADM hod
on
The
on
RBT ond
conTrocTs,
inTenT
slowed
noT
dnd
To
shipmenTs
Sde
perform
wos
The
conTrocT from The ouTseT.
Accordingly, The courT overrules The generol demurrer.
Third & FourTh Causes of AcTion — NegligenT Hiring, Training dnd Supervision
“Cdlifornio cose low recognizes The Theory Tth on employer con be Iidble To o
Third person for negligenle hiring, supervising, or reToining on unfiT employee.” (Doe v.
CopiTol CiTies (1996) 50 Col.App.4Th 1038, 1054.) The elemenTs of negligenT hiring,
supervision dnd/or reTenTion ore os follows: 1) The defendonT hired The employee; 2) The
unfi’rness of the employee ’ro perform The work for which he or she was hired; 3) The
employer knew or should hove known ’rhaT ’rhe employee wos unfi’r 0nd ’rho’r This
unfiTness creoTed 0 porTiculor risk To oThers; 4) The employee's unfiTness harmed plcinTiff;
0nd 5) The employer‘s negligence in hiring, supervising ond/or reToining The employee
wos o subsTonTicl focTor in causing The ploinTiff‘s harm. (CACI No..426.)
The FAC now alleges in paragraph 43 ThaT Shawn Sowo 0nd NoTosho Dukes
“were unfiT To be hired for cnd/or reTcined by ADM based on Their lock of educoTion,
Training, experience, ond/or Their personal financial difficulTies rendering Them
porTiculorIy suscepTible To engaging in The conducT herein alleged." The “conducT
herein alleged" is The procTice of demanding kickbacks 0nd of delaying roilcors unTil
The bribes were paid. RBT is required To allege focTs showing ThoT (i) ADM knew or
should hoVe known Sowo 0nd Dukes would OCT in on improper manner, 0nd (2) Sowci
0nd Dukes did in fdcT ocT in ThoT manner. (See Doe v. CapiToI CiTies, supra, 50
Col.App.4Th 0T pp. 1054-1055 [claim for negligenT hiring, Training 0nd supervision
dismissed wiThouT leave To amend in absence of specific focTuol ollegoTions
esToblishing employer's knowledge ThoT employee creoTed o pchiculcir risk since “The
cornersTone of CI negligenT hiring Theory is The risk ThoT The employee wiilocT in a cerToin
way 0nd The employee does ocT in ThoT woy"].)
Doe is insTrucTive. In ThoT case The appelicTe courT found ThoT o sTUdio‘s
knowledge ThaT o direcTor used his posiTion of ouThoriTy To exTrocT or To coerce sexual
favors (i.e., The “cosTing couch") was noT knowledge ThoT he would firsTdrug, 0nd Then
aTchk, o poTenTiol employee. Here, The focT ThoT ADM knew ThoT Sowc were
uneducoTed, unTrQined, unexperienced and penurious, does noT equoTe inTo
knowledge ThoT They would commiT The crime of exTorTion. lwould susToin The general
demurrer wiTh furTher leove To omend.
Special Demurrers
ADM roises, buT does noT brief, speciol demurrers. SecTion 430.10, subdivision (f)
ouThorizes o porTy ogoinsT whom o comploinT hos been filed To objecT by special
demurrer To The pleading on The ground ThoT “[T]he pleading isuncerToin. As used in This
subdivision, ‘uncerToin' includes ambiguous ond uninTelligible." Demurrers for
unoerToinTy ore disfovored. (Khoury v. Moly's of California, lnc. (i993) l4 Col.App.4Th
61 2, 61 6.) A demurrer for uncerToinTy moy be susToined when The comploinT is drofTed
in o monner ThoT is so vogue or uncerToin ThoT The defendonT cannoT reosonobly
respond, e.g., The defendonT connoT deTermine whoT issues musT be odmiTTed or
denied, or whoT couses of ocTion ore direcTed ogoinsT The defendonT. (lbid.)
Demurrers for uncerToinTy ore opproprioTely overruled where “ombiguiTies con
reosonobly be clorified under modern rules of discovery." (lbid.)
The FAC is noT uncerToin. The courT overrules The speciol demurrers.
ADM's MoTion To STrike
A mo’rion to s’rrike con be used ’ro CUT ou’r cmy ‘irrelevan’r, false or improper'
mo’n‘ers or “a demand for judgment requesting relief no’r supported by The allegations
of ’rhe complaint." (Code Civ. Proc., § 431.10, subd. (b).) A mo’rion To s’rrike is’rhe
proper procedure To challenge on improper request for relief, 0r improper remedy,
within a complaint. (Grieves v. Superior Coun‘ (1984) 157 C0l.App.3d 159, 166—1 67.)
Punifive Damages:
Defendants claim Tho? There ore insufficient foc’rs 10 support o claim for punitive
damages. With respect ’ro punitive damage allegations, mere legal conclusions of
oppression, fraud or malice ore insufficient (0nd hence improper) and Therefore mcy
be stricken. However, if looking To The complaint as a whole, sufficient facts ore
alleged ’ro support the ollego’rions, Then o mofion ’ro strike should be denied. (Perkins v.
Superior Courf (1981) 117 Col.App.3d 1, 6.)
Here, ADM argues That because each of The Causes of ocTion which osserT o
claim To puniTive damages: promissory fraud, negligenT hiring, negligenT Training &
supervision oll foil on demurrer, ThoT The moTion To sTrike is opproprioTe. However, The
promissory fraud claim isodequaTely alleged. Moreover, The FirsTAmended ComploinT
pleads conducT of o Type similar To exTorTion, 0 crime. This is,on odequoTe bosis Tor
puniTive damages. (Tomoselli v. Tronsomerico Ins .Co. (1994) 25 Col.App.4Th 1269, 1287;
Cloud v. Casey (1999) 76 Col.App.4Th 895, 912.)
The courT denies The moTion To sTrike puniTive damages.
Rescission:
“A porTy who isfroudulenle induced To execuTe o conTracT con eiTher rescind
The conTrocT and resTore The consideroTion, or con affirm The conTrocT 0nd recover
damages for fraud." (Village NorThridge Homeowners Assn. v. SToTe Form Fire &
“ 'A
CasuolTy Co. (2010) 50 Ccl.4Th 913, 923.) conTrocT isexTingUished by iTs rescission.’
(Civ. Code, § 1688.) ‘Rescission noT only TerminoTes furTher IiobiliTy bUT resTores The
porTies To Their former posiTion by requiring each To reTurn whoTever he or she received
as consideroTion under The conTrocT, or, where specific resToroTion connoT be had, iTs
value. [CiTcTions.]' (1 WiTkin, Summary of Col. Low (10Th ed. 2005) ConTrocTs, § 926, p.
1023.) The courT does noT rescind conTrocTs buT only affords relief based on a porTy—
effecTed rescission.'BoTh The grounds for rescission 0nd The means by which porTies may
rescind Their conTrocT ore governed by sToTuTe. (See Civ. Code, § 1688 eT seq.)" (EsToTe
of Wong (201 2) 207 Col.App.4Th 366, 382—383.)
Civil Code secTion 1689 seTs forTh The circumsTonces ThoT enTiTIe o porTy To
rescind. Subdivision (b) provides ThoT o conTrocTing porTy may uniloTeroliy rescind The
conTrocT if, among oTher reasons: (1) "The consenT of The pchy rescinding wos given
by misToke, or obToined Through duress, menace, fraud, or undue influence, exercised
by or wiTh The connivcnce of The porTy os To whom he rescinds, or of any oTher parTy To
The conTracT joinle inTeresTed wiTh such parTy."
RDM conTends ThaT RBT cannoT recover in rescission because iTdid noT promple
give noTice of rescission and offer To resTore The value received. (See Civ. Code §
1691.) Civil Code secTion 1693 provides ThaT when relief based Upon rescission is
claimed in on ocfibn or proceeding, such relief ”shall n01 be denied” because of deloy
in giving notice of rescission or a delay in restoring or in Tendering restoration of such
benefits, ”unless such delay hos been substantially prejudicial To ’rhe other party."
Determining prejudice is beyond The scope of o motion To strike. The court -
denies The motion ’ro s’rrike ’rheprayer for rescission.
Accounting:
An accounting is on equitable proceeding where ’rhere is on unliquidc’red cmd
unoscerioined amount owing Thai conno’r be determined wi’rhou’r on examination of
The debiTs 0nd crediTs on The books To deTermine whoT is due and owing. (ST. James
Church v. Superior Court (i955) 135 Col.App.2d 352, 359; Peoples Finance eTc. Co. v.
Bowman (i943) 58 Col.App.2d 729, 734.) EquiTobIe principles govern, and The ploinTiff
musT show The legal remedy is inodequoTe. Thus, where The books 0nd records ore so
complicoTed ThoT on ocTion demanding o fixed sum is improcTicoble, on occounTing is
opproprioTe. (Civic WesTern Corp. v. Zilo IndusTn'es, Inc. (i977) 66 Col.App.3d i, i4.) if0n
oscerTCIinobie sum is owed, an ocTion for on accounTing is noT proper. (ST. James
Church, supra, 135 Cal.App.2d 0T p. 359.) Generally, cm underlying fiduciary
reloTionship, such as 0 porTnership, will supporT cm occounTing, buT The ccTion does noT
lie merely because The books 0nd records ore complex. (Son Pedro Lumber Co. v.
Reynolds (1896) iii Col. 588, 596—597; Union Bonk v.‘ Superior CourT (i995) 3i
Col.App.4Th 573, 594.) Some underlying misconducT on The pch of The defendonT musT
be shown To invoke The righT To This equiToble remedy. (Union Bonk, supra, 31
Col.App.4Th OT pp. 593—594.)
RBT's defense isThoT The demands 0nd poymenTs occurred over many years 0nd
The colcuioTiOhs of whoT wos paid is complicoTed. However, complicoTed
moThemoTics isnoT The bosis for cm occounTing. I would gronT The moTion To sTrike wiTh
leave To amend.
RBT's & LiTTlefield's DemUrrer To ADM‘s FirsTAmended Cross-ComoldinT
TenTh Cause of Action — Breach of Fiduciary DuTy
RBT 0nd LiTTleTon generally demur To The TenTh cause of ocTion. The elemenTs of
o cause of ocTion for breach of fiduciary dUTy ore: (1) exisTence of o fiduciary dUTy; (2)
breach of The fiduciary duTy; 0nd (3) damage proximoTely caused by The breach.
(Pierce v. Lyman (1991) 1 Col.App.4Th 1093, 1101 .)
The TenTh cause of ocTion now alleges ThoT “(0]s resuiT of The long reloTionship of
TrusT 0nd confidence going back opproximoTely Ten (10) years, ADM's enTrusTmenT To
RBT of invenTory and responsibiliTy To occounT for iT occuroTeiy 0nd compleTely, The
inducemenTs To ADM To pay cddiTionoI monies for expansion of The fociliTy making The
porTies joinle commiTTed To The conTinuing viobiliTy 0nd expansion of RBT's fociliTies, 0nd
The boilmenT ogreemenTs beTween ADM 0nd RBT, RBT knowingly underTook To ocT on
beholf of 0nd for The benefiT of ADM 0nd Thereby owed ADM o fiduciary duTy of TrusT
which required RBT To OCT wiTh The UTmosT go'od fciTh in The besT inTeresTs of ADM, To
make full disclosure 0nd ovoid misleading or false reporTing or conducT, and To Toke
reasonable s’reps To protect ADM's proper'ry while wos
i’r in RBT's custody." (FAX—C o’r1|
123.)
En’rrus’rmen’r of inventory and boilmen’r does not creo’re o fiduciary relationship,
regardless of the length of The relationship. Under California low, “a boilmenf for ’rhe
benefit of bo’rh por’ries iso boilmen’r for hire, 0nd imposes on ’rhe boilee The du’ry ’ro
use ordinary core wi’rh respect To The boiled property." (Gerben‘ v. Yank (1985) 172
Col.App.3d 544, 551 (emphasis odded).) Again, The PUT—Through AgreemenTs ore
oTToched. By Their express Ionguoge They creoTe only 0 boilmenTs for hire 0nd noT
fiduciary reloTionships. The porTies could hove negoTioTed To creoTe o fiduciary
reloTionship beTween Them. (See Kaye v. M‘Divoni (T935) 6 Col.App.2d 132, 134 [The
responsibiIiTy of o boilee for hire con be diminished or increased by conTrocT].) They
opporenle chose noT To.
ADM‘s dUTy To occounT isbased in conTrocT, noT grounded in o fiduciary dUTy, cs
“
The porTies were operoTing under 0 conTrocT during The years 0T issue. ‘Every
conTracT requires one porTy To repose on elemenT of TrusT ond confidence in The oTher
"
To perform.‘ (CiTy of Hope NOT. Medical CenTer v. GenenTech, Inc. (2008) 43 Co|.4Th
375, 389.) "And one porTy's “abiliTy To exploiT o disporiTy of bargaining power' beTween
The porTies does noT necessarily creoTe a fiduciary reloTionship." (Ibid.)
The expansion of RBT's fociliTy does noT, os olleged in The firsT amended cross—
comploinT, does noT arise To ollegoTions of joinT venTure, which would creoTe o fiduciary
reloTionship. There ore Three elemenTs necessory To show The exisTence of o joinT
venTure, which ore similor To o generol porTnership: (1) joinT inTeresT in o common
business; (2) wiTh on undersTonding To shore profiTs ond losses; 0nd (3) o righT To joinT
conTrol. (Jacobs v. LocoTeIli (201 7) 8 Col.App.5Th 31 7, 328, fn. TO.) ADM hos noT alleged
The second ond Third elemenTs.
ADM orgues ThoT iT hos alleged ”boilmenT plus," per The Supreme CourT's
reasoning in CiTy of Hope ond con sToTe o cloim for breoch of fiduciary duTy. In CiTy of
Hope, The Supreme CourT held ThoT The Triol courT erred in insTrucTing The jury ThoT o
fiduciary reloTionship necessorily orises “when o person enTrusTs o secreT ideo or device
To onoTher under on orrongemenT whereby The oTher porTy ogrees To develop, poTenT
ond commercially exploiT The ideo in reTurn for royolTies.” (CiTy of Hope, supra, 43
Col.4Th oT p. 387.) The Supreme CourT explained ThoT The conTrocT in quesTion There wos
beTween Two sophisTicoTed porTies represenTed by counsel ThroughouT The conTrocTuol
negoTioTions. The conTrocT specified ThoT The porTies' reloTionship wos “noT one
involving ogency, joinT venTure, or porTnership, buT ThoT CiTy of Hope wos To be on
independenT conTrocTor." (Id. oT p. 387.) CiTy of Hope wos “vulnerable because iT hod
To rely on [The defendonT's] superior obiliTy in obToining poTenTs ond in morkeTing
producTs,” buT “noT To The exTenT ThoT would necessarily worronT recogniTion of o
fiduciary dUTy," ond The ploinTiff hod noT mode o showing of vulnerabiliTy subsTonTiol
enough To roise equiToble concerns. (Id. OT p. 389.) While The secrecy of informoTion
provided To The oTher porTy “moy be considered by The Trier of focT in deciding wheTher
o fiduciary reIoTionship exisTs, iTdoes noT compel The imposiTion of fiduciary dUTies by
operoTion of low.” (Id. oT p. 391.) The Supreme CourT specifically rejecTed finding o
fiduciary reloTionship “when o monufocTurer enTrusTs iTs producT To o reToiler on
consignmenT." (Id. OT p. 388.) Here, ADM hos olleged
Preview
SUPERIOR COURT OF CALIFORNIA - COUNTY 0F FRESNO Entered by: Civil Department - Non-Limited TITLE 0F CASE: Richard Best Transfer, Inc vs. Archer Daniels Midland Company Case Number: CORRECTED LAW AND MOTION MINUTE ORDER 17CECGo1022 ' Hearing Date: May 14, 2018 Hearing Type: Demurrer (x2), Motion - Strike,Motion - Quash Department: 401 (Chambers) Judge/Temp. Judge: Simpson, Alan Court Clerk: Faulkner, Marvel Reporter/Tape: NIA Appearing Parties: No Appearances Plaintiff: Defendant: Counsel: Counsel: [ ] Off Calendar [ ]Continued to [ ]Setfor __ at _ Dept._ for _ [ ]Submitted on points and authorities with/without argument. [ ] Matter is argued and submitted. I [ ] Upon filing of points and authorities. [ ]Motion isgranted [ ]in part and denied in part. [ ]Motion isdenied [ ]with/withoutprejudice. [x ] Taken out from under submissionladvisement (February 22, 2018) [ ]Demurr-er [ ]overruled [ ]sustained with _ daysto [ ]answer [ ]amend [x] Tentative ruling becomes the order of the court. No further order is necessary. [x] Pursuant to CRC 391(a) and CCP section 101 9.5(a), no further order is necessary. The minute order adopting the tentative ruling serves as the order of the court. [x] Service by the clerk will constitute notice of the order. [x ] See attached copy of the Tentative Ruling. [ ] Judgment debtor_ sworn and examined. [ ] Judgment debtor _ failed to appear. Bench warrant issued in the amount of $ _ JUDGMENT: [ ]Money damages [ ]Default [ ]Other _ entered in the amountof: Principal $_ lnterest$_ Costs $_ Attorney fees $_ Total $_ [ ]Claim of exemption [ ]granted [ ]denied. Court orders withholdings modified to $_ per_ FURTHER, COURT ORDERS: [ ]Monies held by levying officerto be [ ]releasedtojudgmentcreditor. [ ]returnedtojudgmentdebtor. [ ]$__ to be released to judgment creditor and balance returned to judgment debtor. [ ] Levying Officer, County of __. notified. [ ]Writto issue [ ] Notice to be filed within 15 days. [ ] Restitution of Premises [ ]Other: _ CV-14b E04-16 LAW AND MOTION MINUTE ORDER |-__.|-A.._. r'_.__ (17) - Tentative Ruling Re: Richard Best Transfer, Inc. v. Archer Daniels Midland Company, ef al. Court Case No. 17 CECG 01022 Hearing Dofe: January 30, 2018 (Dept. 503) - Motion: Richard Best's, Wyofi Best's and Por’rof Ivory's Mofion To Quosh Tentative Ruling: To deny. Explanation: The Civil Discovery Act provides 1th o personal service of c deposifion subpoena may command a ’rhird party deponen’r To produce business records on request. (Code Civ. Proc., § 2020.020, subd. (c).) Code of Civil Procedure secfion 1987.1 provides, in relevant part: "Ifo subpoeri'o requires The attendance of o wh‘ness or The producfion of books, documents, electronically stored information, or other Things of The Taking of c1 deposiTion, The courT, Upon moTion reasonably mode by any person described in subdivision (b) may make an order direcTing compliance wiTh iTupon Those Terms or condiTions as The courT shall declare, including proTecTive orders." (Code Civ. Proc.,§ 1987.1,subd. (0).) The Mofion isNoT UnTimer ADM conTends This moTion isunTimely as iT was filed six monThs afTer The daTe seT for producTion. However, This facT does noT deprive The court of jurisdicTion To rule on The moTion. (In re R.R. (2010) 187 Cal.App.4Th 1264, 1278; Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1312.) The MoTion Does NoT Require a Separate STaTemenT ADM argues The moTion should be denied because 1T conTains no separaTe sTaTemenT seTTing forTh The parTicuIar documenTs or demands aT issue and The TacTual and legal reasons why producTion should noT be compelled. (Cal. Rule of CourT, rule 3.1345(a)(5).) However, because Rule of CourT 3.1345 does noT require a separaTe sTaTemenT on a moTion To quash a subpoena, The courT would be remiss in denying The moTion for failure To include one. The Subpoena Will NoT be Quashed Cross-defendanTs claim Their Richard BesT's and Richard BesT Transfer‘s financial informaTion is privaTe, and noT reievanT To The claims and defenses in This acTion. In Williams v. Superior Coun‘ (201 7) 3 COLS’rh 531 (Williams), The California Supreme Court reaffirmed The Test for evaluating potential invasions of privacy expressed in Hill v. National Collegiate Athletic: Assn. (1994) 7 Col.4Th I (Hill). The'porfy Firs’r, asserting a privacy righf mus’r establish c1 legally proTec’red privacy inferes’r, on objectively reasonable expecfo’rion of privacy in ’rhe given circumstances, cmd o Threatened in’rrusion That isserious. (Id. OT pp. 35-37.) Second, ’rhe party seeking information may raise in response whatever legifimofe and important countervailing interests disclosure serves, while The porTy seeking proTecTion may idenTify feasible olTernoTives ThaT serve The some inTeresTs or proTecTive measures ThoT would diminish The loss of privacy. Finally, The courT musT Then balance These compeTing consideroTions. (Id. 0T pp. 37—40; see Williams, supra, 0T p. 553.) Generally, financial informoTion is priche. (Valley Bank of Nevada v. Superior Coun‘ (1975) 15 Col.3d 652, 656.) Cross—defendonTs do noT ciTe, or QTTempT To apply The Hill or Williams TesT. However, cross—defendanTs' expecToTion of privacy in Their bank records isobjecTively reasonable 0nd The proposed inTrusion is serious. (Id. 0T p. 656- 657.) However, The records ore highly reievonT To The IiTigaTion. ADM claims RBT, Through iTs direcTors/officers Richard BesT, WyoTT BesT, 0nd Charles LiTTIefieId,used iTs puT— Through cgreemenT wiTh ADM To induce ADM To provide feed pelIeT invenTory To wiTh The false preTense 0nd inTenTion To diverT significanT porTs of iTTo uncUThorized 0nd fraudulenT sales and To allow RBT To reTain The proceeds of Those soles and spliT Them wiTh oTher defendonTs, oii The Time concealing from ADM and misreporTing To ADM The True sToTe of soles of iTs producT. ' ADM alleges ThoT RBT perpeTroTed The fraud and concealmenT 0nd The predicoTe ocTs of rockeTeering acTiviTy Through The deToiled allegoTions of c:cTions of RBT's officers/direcTors Richard BesT, WyoTT BesT, 0nd LiTTIefieId, as weil cs former ADM employees Shown Sowo and NoTosho Dukes, which included paying illegal kickbacks To Sowo and Dukes for Their roles in The scheme, 0nd uTiIizing Thomas Scoife 0nd his company To broker and manage illegally diverTed soles of ADM producT, oil To on esTimoTed loss of revenue of in excess of $3.5 million. Here, The subpoena is direchy relevch To The allegaTions of The cross-comploinT. MoTTer is "direcTiy relevonT" where iT is essenTioI To deTermining The TruTh of The moTTers in dispuTe. (BriTT v.Superior CourT (i 978) 20 Col§3d 844, 859-862.) There isno beTTer way To prove wheTher, and To wth degree, one's cross-defendonTs did business wiTh each oTher Than To subpoena The ‘records from The accounTs wiTh which They did business wiTh each oTher. Cross-defendcst raise a cursory objecTion regarding Third porTy privacy inTeresTs regarding Their cusTomers 0nd business partners, bUT foil To orTiculoTe how incidenTal informoTion regarding pcymenTs by cusTomers 0nd or poymenTs To vendors in The ordinary course of business could be sufficienTiy privoTe To prevenT iTs discovery where The caTegory of discovery is direcTiy relevanT. The subpoena is neither over brood nor vogue. To The contrary, i1 specifies that only documents relating To accounts connected To co—defendcm‘s should be pr'oduced. H is no’r a fishing expedition for every financial document relo’red To Richard Best or Richard Best Transfer, or every paper possessed by ’rhe deponen’r, os in The' manner of The subpoena in Calcor Space Facilh‘y, Inc. v. Superior Court (1997) 53 Cal.AppAth 216. The Calcor court Then foundlthof “a blonkef demand hardly constitutes 'reosonoble‘ particularity.” (lbid.) Because The Colcor subpoena could be read 1‘0 simply require The producing pdrTy To produce everyThing in iTs possession which in any way reloTed To The subjeCT of The liTigoTion, There was no indicoTIon ThoT The coTegories bore any relaTion To The manner which The Third parTy kepT iTs records. Here. The deponenT did noT indicaTe iT had any difficulTy complying wiTh The subpoena and sTaTed iT would produce records unless a mofion was broughT. (Mosqueda Decl. 1] 5; Ex. C.) There is no Calcor problem wiTh This subpoena. PursuanT To California Rules of CourT, rule 3.1312(a) and Code of Civil Procedure secTion 1019.5, subdivision (a), .no furTher wriTTen order is necessary. The minUTe order adopTing This TenTaTive ruling will serve as The order of The courT and service by The clerk will consTiTUTe noTice of The order. Lemma issued By: on Vfi/g _ l ginmals) (Dole) (17) Tentative Ruling Re: Richard Best Transfer, Inc. v. Archer Daniels Midland Company, et al. Cour’r Case No. 17 CECG O1 022 Hearing Date: January 30, 2018 (Dep’r. 503) Motion: 1) Archer Daniels Midland Company's Demurrer ’ro FirstAmended Complaint 2) Archer Daniels Midland Company's Motion To Strike Various Portions of First Amended Complaint 3) Richard Bes’r Transfer, lnc.'s Demurrer ’ro Archer Daniels Midland Company's FirstAmended Cross—Comploinf Tentative Ruling: As ’ro ADM's Demurrer to The Firs’rAmended Complaint: fo overrule The general demurrer cs ’roThe firsTcause of ccTion. To susToin The general demurrer wiTh leove To ' amend as To The Third 0nd fourTh causes of ocTion. As To ADM's MoTion To STrike The FirsT Amended Complaint To deny as To puniTive damages 0nd rescission. To gronT os To The prayer for occounTing wiTh leave To amend. As To RBT's Demurrer To FirsT Amended Cross—ComplroinT: To susToin wiTh leave To amend cs To The TenTh cause of ocTion. To susToin wiThouT leave cs To The elevenTh cause. of ocTion. All new pleadings shall be filed 0nd served wiThin 10 days of The clerk‘s service of This minUTe order. EoCh new allegoTion shall be in boldface Type fonT. ExplanaTion: ADM's Demurrer To FirsT Amended Complaint FirsT Cause of AcTion — Promissory Fraud ” ‘The elemenTs of fraud, which give rise To The TorT ocTion for deceiT, ore (o) misrepresenToTion (false represenToTion, concealmenT, or nondisclosure); (b) knowledge of folsiTy (or “scienTer"); (c) inTenT To defraud, i.e., To induce reliance; (d) jusTifioble reliance; 0nd (e) resulTing domage.’ [CiToTions.] [1)]‘Promissory froud' isa subspecies of The ocTion for fraud 0nd deceiT. A promise To do someThing necessarily implies The inTenTion To perform; hence, where a promise is mode wiThouT such inTenTion, There is on implied misrepresenToTion of focT ThoT moy be ocTionoble fraud. [CiToTions.] [1)] An ocTion for promissory fraud moy lie where o defendonT froudulenle induces The ploinTiff To enTer inTo o conTrocT." (Lazar v. Superior CourT (i996) i2 Col.4Th 631, 638.) Eoch element of promissory fraud mus’r be pled wi’rh particularity. (Beckwifh v. Dohl (2012) “ ' 205 Col.App.4’rh 1039, 1060.) In particular, The plaintiff must allege wi’rh particularity “fdcfs which show how, when, where, To whom, 0nd by what means The ' " represem‘o’rions were tendered.” (Lazar v. Superior Court, supra, 12 Col.4’rh o’r p. 645.) Against o corporate defendant, The pleading musT allege The name of The person who mode The represenToTion, his or her ouThoriTy To speak, To whom he or she spoke, and how The represenToTion was communicoTed. (Tormonn v. SToTe Form MUT. AUTO. Ins. Co. {1991) 2 Col.App.4Th 153, 157.) Each elemenT of o fraud cause of ocTion musT be pleaded wiTh porTiculoriTy so cs To apprise The defendonT of The specific grounds for The charge 0nd enable The courT To deTermine wheTher There isony basis for The cause of ocTion. (CommiTTee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Col.3d 197, 216—217.) Here, ADM claims ThoT RBT has foiled To allege The fdcTs seTTing forTh circumsTonces surrounding The alleged fraud, reasonable reliance, 0nd lock of inTenT To perform on ADM's porT. As for The circumsTonces of The misrepresenToTions, The FAC adequoTely alleges in paragraph 15 ThoT Shawn Sowcl in his copociTy os ADM's CommodiTy Manager 0nd NoTosho Dukes in her copociTy os mode demands in person in meeTing 0nd Telephone coils wiTh Richard BesT of RBT on 46 specific doTes 0nd on more Thon 50 occasions. As for reliance, ADM makes on inTeresTing orgumenT ThaT RBT could noT hove reasonably relied on any sToTemenT by Sowo because Sowe/ADM sTorTed demanding money by 2008 before The 201 1 firsTPUT—Through AgreemenT 0nd sToTed, in negoTioTing The second PUT—Through AgreemenT ThoT The demands would evenTuoliy slow or sTop because of The money ADM would moke off roilcor incenTives. (See FAC oT 111131—33.) in oTher words, RBT knew going inTo The second PuT—Through AgreemenT ThoT There would be more pdymenT demdnds; dT besT They would merely slow. In fdcT, RBT orgues The FAC olleges They did slow from 2014 To 2016. This is o good orgumenT Tth RBT did noT reosondbly rely on ADM's promise To fdiThfully perform iTs second PuT—Through performance. However, iTdoes noT dispose of on enTire couse of dcTion os The couse of ocTion combines boTh AgreemenTs. porogrdph As for pleading 34 os o ADM's conclusion. lock of inTenT Porogrdph To 31 perform, odequoTely The FAC olleges pledds Tth d eo lock of ond inTenT Dukes in in To on Their officiol RBT if The ogenT of roles ADM, os demdnds were This ADM is employees noT meT. some As ollegoTion d mode eo ThoT demands negoTidTed ADM hod on The on RBT ond conTrocTs, inTenT slowed noT dnd To shipmenTs Sde perform wos The conTrocT from The ouTseT. Accordingly, The courT overrules The generol demurrer. Third & FourTh Causes of AcTion — NegligenT Hiring, Training dnd Supervision “Cdlifornio cose low recognizes The Theory Tth on employer con be Iidble To o Third person for negligenle hiring, supervising, or reToining on unfiT employee.” (Doe v. CopiTol CiTies (1996) 50 Col.App.4Th 1038, 1054.) The elemenTs of negligenT hiring, supervision dnd/or reTenTion ore os follows: 1) The defendonT hired The employee; 2) The unfi’rness of the employee ’ro perform The work for which he or she was hired; 3) The employer knew or should hove known ’rhaT ’rhe employee wos unfi’r 0nd ’rho’r This unfiTness creoTed 0 porTiculor risk To oThers; 4) The employee's unfiTness harmed plcinTiff; 0nd 5) The employer‘s negligence in hiring, supervising ond/or reToining The employee wos o subsTonTicl focTor in causing The ploinTiff‘s harm. (CACI No..426.) The FAC now alleges in paragraph 43 ThaT Shawn Sowo 0nd NoTosho Dukes “were unfiT To be hired for cnd/or reTcined by ADM based on Their lock of educoTion, Training, experience, ond/or Their personal financial difficulTies rendering Them porTiculorIy suscepTible To engaging in The conducT herein alleged." The “conducT herein alleged" is The procTice of demanding kickbacks 0nd of delaying roilcors unTil The bribes were paid. RBT is required To allege focTs showing ThoT (i) ADM knew or should hoVe known Sowo 0nd Dukes would OCT in on improper manner, 0nd (2) Sowci 0nd Dukes did in fdcT ocT in ThoT manner. (See Doe v. CapiToI CiTies, supra, 50 Col.App.4Th 0T pp. 1054-1055 [claim for negligenT hiring, Training 0nd supervision dismissed wiThouT leave To amend in absence of specific focTuol ollegoTions esToblishing employer's knowledge ThoT employee creoTed o pchiculcir risk since “The cornersTone of CI negligenT hiring Theory is The risk ThoT The employee wiilocT in a cerToin way 0nd The employee does ocT in ThoT woy"].) Doe is insTrucTive. In ThoT case The appelicTe courT found ThoT o sTUdio‘s knowledge ThaT o direcTor used his posiTion of ouThoriTy To exTrocT or To coerce sexual favors (i.e., The “cosTing couch") was noT knowledge ThoT he would firsTdrug, 0nd Then aTchk, o poTenTiol employee. Here, The focT ThoT ADM knew ThoT Sowc were uneducoTed, unTrQined, unexperienced and penurious, does noT equoTe inTo knowledge ThoT They would commiT The crime of exTorTion. lwould susToin The general demurrer wiTh furTher leove To omend. Special Demurrers ADM roises, buT does noT brief, speciol demurrers. SecTion 430.10, subdivision (f) ouThorizes o porTy ogoinsT whom o comploinT hos been filed To objecT by special demurrer To The pleading on The ground ThoT “[T]he pleading isuncerToin. As used in This subdivision, ‘uncerToin' includes ambiguous ond uninTelligible." Demurrers for unoerToinTy ore disfovored. (Khoury v. Moly's of California, lnc. (i993) l4 Col.App.4Th 61 2, 61 6.) A demurrer for uncerToinTy moy be susToined when The comploinT is drofTed in o monner ThoT is so vogue or uncerToin ThoT The defendonT cannoT reosonobly respond, e.g., The defendonT connoT deTermine whoT issues musT be odmiTTed or denied, or whoT couses of ocTion ore direcTed ogoinsT The defendonT. (lbid.) Demurrers for uncerToinTy ore opproprioTely overruled where “ombiguiTies con reosonobly be clorified under modern rules of discovery." (lbid.) The FAC is noT uncerToin. The courT overrules The speciol demurrers. ADM's MoTion To STrike A mo’rion to s’rrike con be used ’ro CUT ou’r cmy ‘irrelevan’r, false or improper' mo’n‘ers or “a demand for judgment requesting relief no’r supported by The allegations of ’rhe complaint." (Code Civ. Proc., § 431.10, subd. (b).) A mo’rion To s’rrike is’rhe proper procedure To challenge on improper request for relief, 0r improper remedy, within a complaint. (Grieves v. Superior Coun‘ (1984) 157 C0l.App.3d 159, 166—1 67.) Punifive Damages: Defendants claim Tho? There ore insufficient foc’rs 10 support o claim for punitive damages. With respect ’ro punitive damage allegations, mere legal conclusions of oppression, fraud or malice ore insufficient (0nd hence improper) and Therefore mcy be stricken. However, if looking To The complaint as a whole, sufficient facts ore alleged ’ro support the ollego’rions, Then o mofion ’ro strike should be denied. (Perkins v. Superior Courf (1981) 117 Col.App.3d 1, 6.) Here, ADM argues That because each of The Causes of ocTion which osserT o claim To puniTive damages: promissory fraud, negligenT hiring, negligenT Training & supervision oll foil on demurrer, ThoT The moTion To sTrike is opproprioTe. However, The promissory fraud claim isodequaTely alleged. Moreover, The FirsTAmended ComploinT pleads conducT of o Type similar To exTorTion, 0 crime. This is,on odequoTe bosis Tor puniTive damages. (Tomoselli v. Tronsomerico Ins .Co. (1994) 25 Col.App.4Th 1269, 1287; Cloud v. Casey (1999) 76 Col.App.4Th 895, 912.) The courT denies The moTion To sTrike puniTive damages. Rescission: “A porTy who isfroudulenle induced To execuTe o conTracT con eiTher rescind The conTrocT and resTore The consideroTion, or con affirm The conTrocT 0nd recover damages for fraud." (Village NorThridge Homeowners Assn. v. SToTe Form Fire & “ 'A CasuolTy Co. (2010) 50 Ccl.4Th 913, 923.) conTrocT isexTingUished by iTs rescission.’ (Civ. Code, § 1688.) ‘Rescission noT only TerminoTes furTher IiobiliTy bUT resTores The porTies To Their former posiTion by requiring each To reTurn whoTever he or she received as consideroTion under The conTrocT, or, where specific resToroTion connoT be had, iTs value. [CiTcTions.]' (1 WiTkin, Summary of Col. Low (10Th ed. 2005) ConTrocTs, § 926, p. 1023.) The courT does noT rescind conTrocTs buT only affords relief based on a porTy— effecTed rescission.'BoTh The grounds for rescission 0nd The means by which porTies may rescind Their conTrocT ore governed by sToTuTe. (See Civ. Code, § 1688 eT seq.)" (EsToTe of Wong (201 2) 207 Col.App.4Th 366, 382—383.) Civil Code secTion 1689 seTs forTh The circumsTonces ThoT enTiTIe o porTy To rescind. Subdivision (b) provides ThoT o conTrocTing porTy may uniloTeroliy rescind The conTrocT if, among oTher reasons: (1) "The consenT of The pchy rescinding wos given by misToke, or obToined Through duress, menace, fraud, or undue influence, exercised by or wiTh The connivcnce of The porTy os To whom he rescinds, or of any oTher parTy To The conTracT joinle inTeresTed wiTh such parTy." RDM conTends ThaT RBT cannoT recover in rescission because iTdid noT promple give noTice of rescission and offer To resTore The value received. (See Civ. Code § 1691.) Civil Code secTion 1693 provides ThaT when relief based Upon rescission is claimed in on ocfibn or proceeding, such relief ”shall n01 be denied” because of deloy in giving notice of rescission or a delay in restoring or in Tendering restoration of such benefits, ”unless such delay hos been substantially prejudicial To ’rhe other party." Determining prejudice is beyond The scope of o motion To strike. The court - denies The motion ’ro s’rrike ’rheprayer for rescission. Accounting: An accounting is on equitable proceeding where ’rhere is on unliquidc’red cmd unoscerioined amount owing Thai conno’r be determined wi’rhou’r on examination of The debiTs 0nd crediTs on The books To deTermine whoT is due and owing. (ST. James Church v. Superior Court (i955) 135 Col.App.2d 352, 359; Peoples Finance eTc. Co. v. Bowman (i943) 58 Col.App.2d 729, 734.) EquiTobIe principles govern, and The ploinTiff musT show The legal remedy is inodequoTe. Thus, where The books 0nd records ore so complicoTed ThoT on ocTion demanding o fixed sum is improcTicoble, on occounTing is opproprioTe. (Civic WesTern Corp. v. Zilo IndusTn'es, Inc. (i977) 66 Col.App.3d i, i4.) if0n oscerTCIinobie sum is owed, an ocTion for on accounTing is noT proper. (ST. James Church, supra, 135 Cal.App.2d 0T p. 359.) Generally, cm underlying fiduciary reloTionship, such as 0 porTnership, will supporT cm occounTing, buT The ccTion does noT lie merely because The books 0nd records ore complex. (Son Pedro Lumber Co. v. Reynolds (1896) iii Col. 588, 596—597; Union Bonk v.‘ Superior CourT (i995) 3i Col.App.4Th 573, 594.) Some underlying misconducT on The pch of The defendonT musT be shown To invoke The righT To This equiToble remedy. (Union Bonk, supra, 31 Col.App.4Th OT pp. 593—594.) RBT's defense isThoT The demands 0nd poymenTs occurred over many years 0nd The colcuioTiOhs of whoT wos paid is complicoTed. However, complicoTed moThemoTics isnoT The bosis for cm occounTing. I would gronT The moTion To sTrike wiTh leave To amend. RBT's & LiTTlefield's DemUrrer To ADM‘s FirsTAmended Cross-ComoldinT TenTh Cause of Action — Breach of Fiduciary DuTy RBT 0nd LiTTleTon generally demur To The TenTh cause of ocTion. The elemenTs of o cause of ocTion for breach of fiduciary dUTy ore: (1) exisTence of o fiduciary dUTy; (2) breach of The fiduciary duTy; 0nd (3) damage proximoTely caused by The breach. (Pierce v. Lyman (1991) 1 Col.App.4Th 1093, 1101 .) The TenTh cause of ocTion now alleges ThoT “(0]s resuiT of The long reloTionship of TrusT 0nd confidence going back opproximoTely Ten (10) years, ADM's enTrusTmenT To RBT of invenTory and responsibiliTy To occounT for iT occuroTeiy 0nd compleTely, The inducemenTs To ADM To pay cddiTionoI monies for expansion of The fociliTy making The porTies joinle commiTTed To The conTinuing viobiliTy 0nd expansion of RBT's fociliTies, 0nd The boilmenT ogreemenTs beTween ADM 0nd RBT, RBT knowingly underTook To ocT on beholf of 0nd for The benefiT of ADM 0nd Thereby owed ADM o fiduciary duTy of TrusT which required RBT To OCT wiTh The UTmosT go'od fciTh in The besT inTeresTs of ADM, To make full disclosure 0nd ovoid misleading or false reporTing or conducT, and To Toke reasonable s’reps To protect ADM's proper'ry while wos i’r in RBT's custody." (FAX—C o’r1| 123.) En’rrus’rmen’r of inventory and boilmen’r does not creo’re o fiduciary relationship, regardless of the length of The relationship. Under California low, “a boilmenf for ’rhe benefit of bo’rh por’ries iso boilmen’r for hire, 0nd imposes on ’rhe boilee The du’ry ’ro use ordinary core wi’rh respect To The boiled property." (Gerben‘ v. Yank (1985) 172 Col.App.3d 544, 551 (emphasis odded).) Again, The PUT—Through AgreemenTs ore oTToched. By Their express Ionguoge They creoTe only 0 boilmenTs for hire 0nd noT fiduciary reloTionships. The porTies could hove negoTioTed To creoTe o fiduciary reloTionship beTween Them. (See Kaye v. M‘Divoni (T935) 6 Col.App.2d 132, 134 [The responsibiIiTy of o boilee for hire con be diminished or increased by conTrocT].) They opporenle chose noT To. ADM‘s dUTy To occounT isbased in conTrocT, noT grounded in o fiduciary dUTy, cs “ The porTies were operoTing under 0 conTrocT during The years 0T issue. ‘Every conTracT requires one porTy To repose on elemenT of TrusT ond confidence in The oTher " To perform.‘ (CiTy of Hope NOT. Medical CenTer v. GenenTech, Inc. (2008) 43 Co|.4Th 375, 389.) "And one porTy's “abiliTy To exploiT o disporiTy of bargaining power' beTween The porTies does noT necessarily creoTe a fiduciary reloTionship." (Ibid.) The expansion of RBT's fociliTy does noT, os olleged in The firsT amended cross— comploinT, does noT arise To ollegoTions of joinT venTure, which would creoTe o fiduciary reloTionship. There ore Three elemenTs necessory To show The exisTence of o joinT venTure, which ore similor To o generol porTnership: (1) joinT inTeresT in o common business; (2) wiTh on undersTonding To shore profiTs ond losses; 0nd (3) o righT To joinT conTrol. (Jacobs v. LocoTeIli (201 7) 8 Col.App.5Th 31 7, 328, fn. TO.) ADM hos noT alleged The second ond Third elemenTs. ADM orgues ThoT iT hos alleged ”boilmenT plus," per The Supreme CourT's reasoning in CiTy of Hope ond con sToTe o cloim for breoch of fiduciary duTy. In CiTy of Hope, The Supreme CourT held ThoT The Triol courT erred in insTrucTing The jury ThoT o fiduciary reloTionship necessorily orises “when o person enTrusTs o secreT ideo or device To onoTher under on orrongemenT whereby The oTher porTy ogrees To develop, poTenT ond commercially exploiT The ideo in reTurn for royolTies.” (CiTy of Hope, supra, 43 Col.4Th oT p. 387.) The Supreme CourT explained ThoT The conTrocT in quesTion There wos beTween Two sophisTicoTed porTies represenTed by counsel ThroughouT The conTrocTuol negoTioTions. The conTrocT specified ThoT The porTies' reloTionship wos “noT one involving ogency, joinT venTure, or porTnership, buT ThoT CiTy of Hope wos To be on independenT conTrocTor." (Id. oT p. 387.) CiTy of Hope wos “vulnerable because iT hod To rely on [The defendonT's] superior obiliTy in obToining poTenTs ond in morkeTing producTs,” buT “noT To The exTenT ThoT would necessarily worronT recogniTion of o fiduciary dUTy," ond The ploinTiff hod noT mode o showing of vulnerabiliTy subsTonTiol enough To roise equiToble concerns. (Id. OT p. 389.) While The secrecy of informoTion provided To The oTher porTy “moy be considered by The Trier of focT in deciding wheTher o fiduciary reIoTionship exisTs, iTdoes noT compel The imposiTion of fiduciary dUTies by operoTion of low.” (Id. oT p. 391.) The Supreme CourT specifically rejecTed finding o fiduciary reloTionship “when o monufocTurer enTrusTs iTs producT To o reToiler on consignmenT." (Id. OT p. 388.) Here, ADM hos olleged