Motion(Related Document) - MARK GOODBAN'S PARTIALLY UNOPPOSED MOTION FOR LEAVE TO AMEND COMPLAINT February 15, 2023 (2024)

Case

Trans Lease Inc v. Huurr Homes LLC et al

Aug 12, 2024 |Sarah Elizabeth Stout |Breach of Contract |2024CV031243

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Miller, Joshua v. General Motors LLC

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Brahmstedt, Colin v. Howard, Rebecca et al

Aug 07, 2024 |Dennis L Mcguire |Breach of Contract |2024CV031496

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Blevins, Amanda et al v. Srotro Association Inc

Aug 12, 2024 |David L Shakes |Breach of Contract |2024CV031525

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Fuller, Mark et al v. Deck Pros LLC

Case

Safeco Insurance Company Of America v. Stevens, Travis M

Aug 08, 2024 |Tayler Marie Thomas |Breach of Contract |2024CV030382

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Braun, Juergen v. Pacific Rim Builders LLC et al

Case

Coppola, Anna et al v. Cramer, Michael P et al

Aug 08, 2024 |J. Chris Larson |Breach of Contract |2024CV030665

Case

Kcl Holdings LLC v. Amberwood Estate Ltd Lllp et al

Aug 09, 2024 |Carroll Michelle Brinegar |Breach of Contract |2024CV030702

Ruling

ANN MARIE URBANSKI VS. EPSILON DATA MANAGEMENT, LLC ET AL

Aug 14, 2024 |CGC22602972

Matter on the Law & Motion Calendar for Wednesday, August 14, 2024, Line 4. PLAINTIFF ANN URBANSKI's MOTION FOR SUMMARY ADJUDICATION. Plaintiff's motion for summary adjudication is denied in its entirety. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)

Ruling

Peasley, Faith vs. Ford Motor Company

Aug 19, 2024 |S-CV-0052599

S-CV-0052599 Peasley, Faith vs. Ford Motor CompanyNo appearance required. CMC is continued to 11/04/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Ford Motor Company

Ruling

FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS

Aug 11, 2024 |FCS059237

FCS059237Motion to Compel ArbitrationTENTATIVE RULINGThe Court (Department Seven) self recuses pursuant to CCP Section 170.1(b)(6)(iii).Pursuant to the direction of Judge Stephen Gizzi, Supervising Judge of the CivilDivision, the matter is reassigned and continued to August 1, 2024 at 9:30 a.m.,Department Three.

Ruling

JOE MAEZ, ET AL. VS RESTAURANT DESIGN STUDIO CORP. A CALIFORNIA CORPORATION, ET AL.

Aug 08, 2024 |22STCV11579

Case Number: 22STCV11579 Hearing Date: August 8, 2024 Dept: 34 Plaintiffs Joe Maez, Hunter Maez and Maez Restaurant Group LLCs Motion to Enforce Settlement is GRANTED. Background Plaintiffs Joe Maez, Hunter Maez and Maez Restaurant Group LLC entered into a series of contracts with Heriberto Camacho and Restaurant Design Studio Corp. (Defendants) to design and build out a commercial space for a restaurant. Plaintiffs alleged Defendants breached the contracts. On November 7, 2022, Plaintiffs filed a complaint, asserting causes of action against Defendants and Does 1-20 for: 1. Breach of Contract 2. Accounting 3. Money Had and Received 4. Unjust Enrichment 5. Violation of Business and Professions Code § 7031 6. Conversion 7. Violation of Penal Code § 496 8. Negligence 9. Statutory and Common Law Fraud On November 23, 2023, the parties settled the case and filed a Stipulation providing the court with jurisdiction under Code of Civil Procedure section 664.6. On July 12, 2024, Plaintiffs filed a Motion to Enforce the Settlement Agreement. Defendants did not file a response. Legal Standard Under Code of Civil Procedure section 664.6: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Discussion Plaintiffs move the court for an order, pursuant to Code of Civil Procedure section 664.6, to enter judgment in accordance with the terms of the parties settlement agreement. On November 30, 2023, Plaintiffs and Defendants executed a Joint Stipulation for Continued Jurisdiction Pursuant to California Code of Civil Procedure Section 664.6 Persuant (sic) to Settlement Agreement[] (Stipulation). The court retained jurisdiction pursuant to the Stipulation. Pursuant to the terms of the Stipulation, Defendants agreed to pay Plaintiffs $225,000.00 in twenty-four equal installments of $9,375.00 beginning on July 1, 2024 and continuing on the 1st of each month thereafter, until paid in full. Paragraph 4 of the Stipulation provides as follows: In the event of any non-payment of any monthly payment required, Plaintiffs will provide written notice to defendants via email from Plaintiffs or their attorney Jason Riddick to Defendants at tito@restaurantdesignstudio.net. Defendants will then have seven (7) calendar days from the transmission of said notice to cure any or all defaults by providing payment due to Plaintiffs as required herein. Should any legal action be undertaken by any party to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to its attorneys fees and costs. Should a motion to enforcement (sic) this settlement be made, and judgment entered, such judgment shall include daily interest at the rate of 10% simple interest per annum on unpaid amount form the notice of breach until the date of judgment, as well as an award of attorneys fees and costs. Since the settlement was reached, Defendants have not paid Plaintiffs. (Maez Decl., ¶ 2). On July 2, 2024, Plaintiffs counsel Jason Riddick sent a letter to Defendants and emailed Defendant Camacho at tito@restaurantdesignstudio.net, notifying Defendants of the default and notice to cure. (Riddick Decl., ¶ 3, Exh. A.) Defendants have not cured the default. The motion, moreover, is unopposed. The Settlement Agreement also calls for prejudgment interest from the date of default (July 2, 2024) to the date of judgment (August 8, 2024). Further, Plaintiffs seek attorneys fees in the amount of $1,777.50 [$395.00/hr. for 4.5 hours]. The court finds the amount requested reasonable. The court grants Plaintiffs motion.

Ruling

AMR BELTAGUI, M.D VS FRUIT STREET HEALTH, P.B.C., ET AL.

Aug 12, 2024 |23STCV30347

Case Number: 23STCV30347 Hearing Date: August 12, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING AMR BELTAGUI, M.D., vs. FRUIT STREET HEALTH, P.B.C., et al. Case No.: 23STCV30347 Hearing Date: July 31, 2024 Defendants Fruit Street Health, P.B.C.s, Laurence Girards, and Christopher Meattos demurrer to Plaintiff Amr Beltagui, M.D.s, 6th and 7th causes of action in his Complaint is sustained with 20 days leave to amend. Defendants demurrer is overruled as to the 1st, 2nd, 3rd, 4th, and 5th causes of action. Defendants Fruit Street Health, P.B.C. (FSH), Laurence Girard (Girard), and Christopher Meatto (Meatto) (collectively, Defendants) demur to Plaintiff Amr Beltagui, M.D.s (Beltagui) (Plaintiff) complaint (Complaint) on the grounds the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th causes of action do not state facts sufficient to constitute causes of action. (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10(e), (f), (g).) Meet and Confer Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41, emphasis added.) Defendants counsel failed to submit a meet and confer declaration with the instant demurrer in violation of C.C.P. §430.41. However, failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Accordingly, the Court will consider Defendants demurrer. Background Plaintiff filed the operative Complaint on December 12, 2023, against Defendants alleging seven causes of action: (1) sale of unqualified security; (2) operating an unlicensed broker-dealer; (3) recission/damages pursuant to Corp. Code §25401; (4) breach of fiduciary duty; (5) constructive fraud; (6) negligence; and (7) damages pursuant to Penal Code §496. Plaintiffs causes of action arise from Plaintiffs alleged purchase of FSH stock and options, which Plaintiff alleges were not registered or qualified securities for sale. (See Complaint ¶¶7-13.) Defendants filed the instant demurrer on May 10, 2024. Plaintiff filed his opposition on July 17, 2024. Defendants filed their reply on July 24, 2024. Summary of Demurrer Defendants demur to all seven causes of action alleged in Plaintiffs Complaint on the basis each cause of action fails to state facts sufficient to constitute causes of action and is uncertain. (Demurrer, pgs. 3-5.) Defendants also demur to the 6th cause of action on the basis it is barred by the applicable statute of limitations. (Demurrer, pg. 4.) Legal Standard [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.) Failure to State a Claim Sale of Unqualified Security (Corp. Code §§25110, 25120, 25130) (1st COA) Corporations Code §25110 provides: It is unlawful for any person to offer or sell in this state any security in an issuer transaction (other than in a transaction subject to Section 25120), whether or not by or through underwriters, unless such sale has been qualified under Section 25111, 25112 or 25113 (and no order under Section 25140 or subdivision (a) of Section 25143 is in effect with respect to such qualification) or unless such security or transaction is exempted or not subject to qualification under Chapter 1 (commencing with Section 25100) of this part. The offer or sale of such a security in a manner that varies or differs from, exceeds the scope of, or fails to conform with either a material term or material condition of qualification of the offering as set forth in the permit or qualification order, or a material representation as to the manner of offering which is set forth in the application for qualification, shall be an unqualified offer or sale. (Corp. Code §25110.) Corporations Code §25120 provides: (a) Except as provided in subdivision (b), it is unlawful for any person to offer or sell in this state any security in any of the following manners: (1) In an issuer transaction in connection with any change in the rights, preferences, privileges, or restrictions of or on outstanding securities. (2) In any exchange of securities by the issuer with its existing security holders exclusively. (3) In any exchange in connection with any merger or consolidation or purchase of assets in consideration wholly or in part of the issuance of securities. (4) In an entity conversion transaction. (b) Subdivision (a) shall not apply to a security if the security is qualified for sale under this chapter (and no order under Section 25140 or subdivision (a) of Section 25143 is in effect with respect to the qualification) or if the security or transaction is exempted or not subject to qualification under Chapter 1 (commencing with Section 25100) of this part. (Corp. Code §25120.) Corporations Code §25130 provides: It is unlawful for any person to offer or sell any security in this state in any nonissuer transaction unless it is qualified for such sale under this chapter or under Section 25111 or 25113 of Chapter 2 (commencing with Section 25110) of this part (and no order under Section 25140 or subdivision (a) of Section 25143 is in effect with respect to such qualification) or unless such security or transaction is exempted or not subject to qualification under Chapter 1 (commencing with Section 25100) of this part. (Corp. Code §25130.) Plaintiff alleges that in February of 2019, he started receiving unsolicited emails from Girard soliciting a purchase of FSH stock. (Complaint ¶7.) Plaintiff alleges he replied in October of 2021 and spoke with Girard by phone. (Complaint ¶7.) Plaintiff alleges Girard explained that FSH was a leading telemedicine company delivering a diabetes prevention program via telehealth and live video chat with registered dietitians. (Complaint ¶7.) Plaintiff alleges Girard went over FSHs income and projections. (Complaint ¶8.) Plaintiff alleges Girard asserted that their projections indicated that FSH would generate over $10 million in revenue in 2022. (Complaint ¶8.) Plaintiff alleges Girard told him that his investment would double, triple, or more within the next few years. (Complaint ¶8.) Plaintiff alleges Girard wanted Plaintiff to meet FSHs team which included Meatto, its Chief Financial Officer, who was also represented to be an attorney. (Complaint ¶9.) Plaintiff alleges Meatto, in a telephone call in late October - early November, 2021, told Plaintiff that he had full trust in Girard and no doubt that his investment would double, triple, or more within the next few years. (Complaint ¶9.) Plaintiff alleges that based on those and other representations, in November, 2021, he invested $400,000 in FSH. (Complaint ¶10.) Plaintiff alleges in return for his investment, he received 450,000 shares of stock and 450,000 options. (Complaint ¶10.) Plaintiff alleges the securities were not registered or qualified for sale by the Securities and Exchange Commission or the California Department of Business Oversight. (Complaint ¶11.) Plaintiff alleges Girard and FSH represented that the securities were exempt from registration, and they were not. (Complaint ¶11.) Plaintiff alleges Girard solicited another purchase by telephone in February of 2023. (Complaint ¶12.) Plaintiff alleges in return for another investment of $75,000, Plaintiff received another 150,000 shares of stock and 150,000 options. (Complaint ¶12.) Plaintiff alleges like the 2021 purchase, these securities were not registered or qualified for sale. (Complaint ¶12.) Plaintiff alleges these securities were also falsely represented by Girard to meet an exemption from registration/qualification. (Complaint ¶12.) Plaintiff alleges during the entire time he was a shareholder, there was never a shareholder meeting or a report to the shareholders. (Complaint ¶13.) Plaintiff alleges that within the last 5 years, Defendants sold securities to him without having qualified the offering pursuant to Corporations Code §§25110, 25120, and 25130. (Complaint ¶15.) Plaintiff alleges pursuant to Corporations Code §§25110, 25120, and 25130, FSH, Meatto, and Girard are liable for the sale of said securities via §25503. (Complaint ¶16.) Plaintiff alleges pursuant to Corporations Code §25504, all Defendants are liable to the same extent as FSH, Meatto, and Girard, as they directly or indirectly controlled a person liable under §25503, and/or as a principal executive officer or director of a corporation so liable, and/or as a person occupying a similar status or performing similar functions, and/or as an employee of a person so liable who materially aided in the act or transactions constituting the violation, and/or as a broker-dealer or agent who materially aided in the act or transaction constituting the violation. (Complaint ¶17.) Plaintiff alleges as a proximate result of Defendants actions, he has sustained direct, indirect, consequential and incidental compensatory damages in the sum of $475,000 plus prejudgment interest and attorneys fees as set forth in Corporations Code §25501. (Complaint ¶18.) Plaintiff sufficiently alleges Defendants violated Corporations Code §§25110, 25120, 25130. (Aubry, 2 Cal.4th at pg. 967 [For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law.].) The burden is on Defendants to demonstrate the securities alleged are not exempt from §§25110, 25120, and 25130 per Corporation Code §25100, and proof of an exemption would not be appropriate on a demurrer, as such proof would require extrinsic evidence that is not judicially noticeable by this Court. (Corp. Code §25100; see Corp. Code §25163 [In any proceeding under this law, the burden of proving an exemption or an exception from a definition is upon the person claiming it.].) Accordingly, Defendants demurrer to Plaintiffs 1st cause of action is overruled. Operating an Unlicensed Broker-Dealer (Corp. Code §§25210, 25501.5) (2nd COA) Corporations Code §25210 provides: (a) Unless exempted under the provisions of Chapter 1 (commencing with Section 25200) of this part, no broker-dealer shall effect any transaction in, or induce or attempt to induce the purchase or sale of, any security in this state unless the broker-dealer has first applied for and secured from the commissioner a certificate, then in effect, authorizing that person to act in that capacity. (b) No person shall, on behalf of a broker-dealer licensed pursuant to Section 25211, or on behalf of an issuer, effect any transaction in, or induce or attempt to induce the purchase or sale of, any security in this state unless that broker-dealer and agent have complied with any rules as the commissioner may adopt for the qualification and employment of those agents. (c) The commissioner shall, consistent with Section 25213, review the disciplinary histories of agents upon the filing of notice of (1) the employment or transfer of an agent for a broker-dealer, (2) an amendment to the information filed by the agent at the time of employment or transfer, and (3) the termination of employment of the agent from the broker-dealer. (Corp. Code §25210.) Corporations Code §25501.5 provides: (a) (1) A person who purchases a security from or sells a security to a broker-dealer that is required to be licensed and has not, at the time of the sale or purchase, applied for and secured from the commissioner a certificate under Part 3 (commencing with Section 25200), that is in effect at the time of the sale or purchase authorizing that broker-dealer to act in that capacity, may bring an action for rescission of the sale or purchase or, if the plaintiff or the defendant no longer owns the security, for damages. (2) Upon rescission and tender of the security, a purchaser may recover the consideration paid for the security plus interest at the legal rate, less the amount of any income received on the security. (3) Upon rescission and tender of the consideration paid for the security plus interest at the legal rate, a seller may recover the security plus the amount of any income received by the defendant on the security. (4) Damages recoverable under this section by a purchaser shall be an amount equal to the difference between the following: (A) The price at which the security was bought plus interest at the legal rate from the date of purchase. (B) The value of the security at the time it was disposed of by the plaintiff plus the amount of any income received on the security by the plaintiff. (5) Damages recoverable under this section by a seller shall be an amount equal to the difference between the following: (A) The value of the security at the time of the filing of the complaint plus the amount of any income received by the defendant on the security. (B) The price at which the security was sold plus interest at the legal rate from the date of sale. (6) A tender of a security or of consideration paid for a security plus interest pursuant to this section may be made at any time before entry of judgment. (b) The court, in its discretion, may award reasonable attorneys fees and costs to a prevailing plaintiff under this section. (Corp. Code §25501.5.) Plaintiff alleges at the time of his purchases of the securities described herein, Defendants were required to sell their securities through a licensed broker dealer. (Complaint ¶20.) Plaintiff alleges Defendants did not sell their securities through a licensed broker dealer as FSH is not a registered broker dealer. (Complaint ¶20.) Plaintiff alleges Defendants FSH, Meatto, and Girard sold securities to Plaintiff without having applied for and obtained a certificate to act as a broker-dealer pursuant to Corporations Code §25210(a) and in violation of Corporations Code §25210(b). (Complaint ¶21.) Plaintiff alleges as a proximate result of Defendants actions, Plaintiff has sustained direct, indirect, consequential, and incidental compensatory damages in the sum of $475,000. (Complaint ¶22.) Plaintiff sufficiently alleges a cause of action for sale of security by an unlicensed broker dealer. The burden is on Defendants to demonstrate they qualify for the exemption in Corporations Code §25210(a), and proof of an exemption would not be appropriate on a demurrer, as such proof would require extrinsic evidence that is not judicially noticeable by this Court. (See Corp. Code §25163.) Accordingly, Defendants demurrer to Plaintiffs 2nd cause of action is overruled. Recission/Damages (Corp. Code §25401) (3rd COA) Corporations Code §25401 provides: It is unlawful for any person to offer or sell a security in this state, or to buy or offer to buy a security in this state, by means of any written or oral communication that includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements made, in the light of the circ*mstances under which the statements were made, not misleading. (Corp. Code §25401.) Plaintiff alleges The Corporate Securities Act applies whenever an offer to purchase or an offer to sell a security is made to or from the State of California. (Complaint ¶24.) Plaintiff alleges §25401 prohibits the sale of securities by means written and oral communications which included untrue statements of a material fact and/or omitted to state a material fact necessary in order to make the statements made, in the light of the circ*mstances under which they were made, not misleading. (Complaint ¶24.) Plaintiff alleges the securities at issue were sold to Plaintiff by means of written and oral communications which included untrue statements of a material fact and/or omitted to state a material fact necessary in order to make the statements made, in the light of the circ*mstances under which they were made, not misleading. (Complaint ¶25.) Plaintiff alleges the material representations included that FSH was a leading telemedicine company; that the investment would double, triple, or more within the next few years; and that FSHs securities were exempted from registration. (Complaint ¶26.) Plaintiff alleges the material omissions included that FSH was not exempt from registration; and FSH was not a legitimate corporation as it was not following corporate formalities. (Complaint ¶27.) Plaintiff alleges Pursuant to Corporations Code § 25504, all Defendants are liable to the same extent as FSH, Meatto, and Girard, as they directly or indirectly controlled a person liable under §25501 and/or as a principal executive officer or director of a corporation so liable, and/or as a person occupying a similar status or performing similar functions, and/or as an employee of a person so liable who materially aided in the act or transactions constituting the violation, and/or as a broker-dealer or agent who materially aided in the act or transaction constituting the violation. (Complaint ¶28.) Plaintiff alleges as a proximate result of Defendants actions, Plaintiff has sustained direct, indirect, consequential, and incidental compensatory damages in the sum of $475,000 plus prejudgment interest and attorneys fees as set forth in Corporations Code §25501. (Complaint ¶29.) Plaintiff sufficiently alleges a cause of action in violation of Corporations Code §25401 based on the allegation that Defendants offered or sold a security in California by means of any written or oral communication that includes an untrue statement of a material fact or omits to state a material fact. (Complaint ¶¶26-27.) Accordingly, Defendants demurrer to Plaintiffs 3rd cause of action is overruled. Breach of Fiduciary Duty (4th COA) To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing the existence of a fiduciary duty owed to that plaintiff, a breach of that duty, and resulting damage. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) Plaintiff alleges that at all times, Defendants, as corporate insiders and a corporation seeking investment monies from Plaintiff, owed plaintiff the fiduciary duty to be truthful and disclose all facts that would be material to Plaintiff as well as to act in his best interest. (Complaint ¶31.) Plaintiff alleges Defendants breached that fiduciary duty by, among other things, selling Plaintiff securities that were not registered or otherwise qualified for sale and misrepresenting the securities by claiming that they are exempt from registration. (Complaint ¶32.) Plaintiff alleges Defendants also misrepresented the prospects of earning a profit by investing in FSH. (Complaint ¶32.) Plaintiff alleges as a result of Defendants acts, errors, and omissions set forth above, Plaintiff has suffered detriment in that he is deprived of a large portion of his life savings, by reason of which Plaintiff has been damaged in an amount believed to be at least in the sum of $475,000. (Complaint ¶33.) Plaintiff sufficiently alleges Defendants owed Plaintiff, a shareholder, a fiduciary duty as a corporate insider. (Complaint ¶31; Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1339 [[T]he relationship between a corporate insider and the stockholders of his corporation gives rise to a disclosure obligation and [a fiduciary] duty arose from (i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure.] quoting Eisenbaum v. Western Energy Resources, Inc. (1990) 218 Cal.App.3d 314, 324.) Plaintiff sufficiently alleges breach of that duty and damages. Accordingly, Defendants demurrer to Plaintiffs 4th cause of action is overruled. Constructive Fraud (5th COA) The elements for constructive fraud are (1) a fiduciary duty or confidential relationship; (2) breach of fiduciary duty; (3) intent to deceive and (4) reliance and resulting injury. (See, e.g., Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516; see also Prakashpalan v. Engostrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131.) The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciarys motives or the principals decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent. (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.) Plaintiff alleges by reason of the fiduciary duty owed by Defendants to Plaintiff as set forth above, each of the Defendants owed to Plaintiff the concomitant duty not to sell him unregistered securities that did not meet an exemption as well as a duty to inform Plaintiff that the securities they were selling to him were not registered and did not meet an exemption. (Complaint ¶36.) Plaintiff alleges Defendants also had the duty to be truthful in their dealings with Plaintiff and to disclose all material facts. (Complaint ¶36.) Plaintiff alleges he justifiably relied on Defendants failures to inform him that the unregistered securities did not meet an exemption and that the future prospects of FHS were not as disclosed. (Complaint ¶37.) Plaintiff alleges as a result of Defendants acts, errors, and omissions set forth above, Plaintiff has suffered detriment in that he permitted Defendants to engage in highly unprofitable trading in his account, by reason of which Plaintiff has been damaged in an amount not fully computed as yet but believed to be at least in the sum of $475,000. (Complaint ¶38.) Plaintiff sufficiently alleges a cause of action for constructive fraud. Plaintiff alleges a fiduciary duty owed by Defendants (Complaint ¶31), breach of duty (Complaint ¶32), and reliance and injury (¶¶37-38). Accordingly, Defendants demurrer to Plaintiffs 5th cause of action is overruled. Negligence (6th COA) The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) Plaintiff alleges at all times described herein, each of the Defendants owed Plaintiff a duty of care to conduct themselves as would a reasonable issuer of securities and of persons selling securities. (Complaint ¶41.) Plaintiff alleges each of the Defendants breached that duty of care by not ensuring that the securities they were selling were registered or met an exemption and not adequately disclosing the risks and prospects of Plaintiff making a profit on the securities they sold him. (Complaint ¶42.) Plaintiff alleges as a result of Defendants acts, errors, and omissions set forth above, Plaintiff has suffered detriment in that he gave Defendants the majority of his life savings, by reason of which Plaintiff has been damaged in an amount believed to be at least in the sum of $475,000. (Complaint ¶43.) Defendants argument that the cause of action is subject to the two-year statute of limitations in C.C.P. §335.1 is unavailing. C.C.P. §335.1 applies to negligence causes of action resulting in a personal injury or death. Here, the applicable statute of limitations is two years set forth in C.C.P. §339 because Plaintiffs cause of action arises from an obligation or liability not founded upon an instrument of writing. Therefore, allegations in Plaintiffs cause of action for negligence are barred by the two-year statute of limitations and allegations of negligence occurring in November 2021 are therefore barred because Plaintiff filed his Complaint on December 12, 2023. Accordingly, Defendants demurrer to Plaintiffs 6th cause of action is sustained with 20 days leave to amend. Damages Pursuant to Penal Code §496 (7th COA) Penal Code §496 provides that any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorneys fees. (Pen. Code §496(c).) While [Penal Code §496(a)] covers a spectrum of impermissible activity relating to stolen property, the elements required to show a violation of section 496(a) are simply that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (iii) the defendant received or had possession of the stolen property. (Switzer v. Wood (2019) 35 Cal.App.5th 116, 126, as modified (May 10, 2019), quoting Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 970 [stating elements of Penal Code §496 offense].) A violation of section 496(a) may, by its own terms, relate to property that has been stolen or that has been obtained in any manner constituting theft or extortion. (Id., quoting Pen. Code §496(a).) Plaintiff alleges Defendants, and each of them, violated Penal Code §496 by receiving from Plaintiff property, in the form of money, which they knew had been obtained by fraudulent and dishonest means, i.e., misrepresentation of the nature and risks of the investments offered. (Complaint ¶45.) Plaintiff alleges by reason of the foregoing, Plaintiff has been damaged in the amount of $475,000, or according to proof, and are entitled to the relief described in the statute, including but not limited to treble damages, attorneys fees, and interest. (Complaint ¶46.) Plaintiff fails to allege Defendants received Plaintiffs $475,000 was stolen or [was] obtained in any manner constituting theft or extortion. (Pen. Code §496(a).) Plaintiff merely alleges Defendants received Plaintiffs money via fraudulent and dishonest means. (Complaint ¶46.) Accordingly, Defendants demurrer to Plaintiffs 7th cause of action is sustained with 20 days leave to amend. Conclusion Defendants demurrer to Plaintiffs 6th and 7th causes of action are sustained with 20 days leave to amend, and overruled as to the 1st, 2nd, 3rd, 4th, and 5th causes of action. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

Ruling

ORION FIRST FINANCIAL, L.L.C. VS. SCOTT A. MCMANUS ET AL

Aug 09, 2024 |CGC22602600

On the Law and Motion Calendar for Friday, August 9, 2024, line 6. PLAINTIFF ORION FIRST FINANCIAL, LLC'S MOTION FOR SUMMARY JUDGMENT Or, Alternatively, Summary Adjudication Of Issues. Plaintiff's motion for summary judgment on its sole claim for breach of guaranty is granted. The motion for summary adjudication as to the affirmative defenses is off calendar as moot. Plaintiff shall prepare a form of judgment for $133,270.45. Fees and costs to be resolved by costs memo/motion. The Court's entire tentative ruling has been emailed to counsel. Friday's Law & Motion Calendar will be called out of Dept. 301. Anyone intending to appear in person should report to Dept. 301. However, anyone intending to appear remotely should use the regular Zoom information for Dept. 302's Law & Motion Calendar for 9:30 a.m. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the defendant is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RCE)

Ruling

NAVY FEDERAL CREDIT UNION VS ATRIUM AME INC, ET AL.

Aug 13, 2024 |23STCV27342

Case Number: 23STCV27342 Hearing Date: August 13, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 NAVY FEDERAL CREDIT UNION, Plaintiff, vs. ARTIUM AME, INC., et al., Defendants. Case No.: 23STCV27342 Hearing Date: August 13, 2024 Hearing Time: 8:30 a.m. [TENTATIVE] ORDER RE: PLAINTIFFS REQUEST FOR DEFAULT JUDGMENT Plaintiff Navy Federal Credit Union (Plaintiff) requests entry of default judgment against Defendant Artium AME, Inc. Plaintiff seeks judgment in the total amount of $59,530.19, comprising $56,977.14 in damages, $2,029.54 in attorneys fees, and $523.51 in costs. On June 17, 2024, the Court issued an Order on Plaintiffs request for default judgment, providing, inter alia, as follows: The Court notes a few defects with the submitted default judgment package. First, on December 1, 2023, Plaintiff filed a proof of service indicating that the summons and Complaint were personally served on Atrium AME Inc on November 30, 2023. (Emphasis added.) However, Plaintiff seeks entry of default judgment against Artium AME, Inc. and the defendant named in the Complaint is Artium AME, Inc. (Emphasis added.) Thus, the spelling of the defendants name on the proof of service appears to be incorrect. Second, this is an action on a loan contract (Compl., pp. 3-4), but Plaintiff has not provided the original of the note. In lieu of the original, Plaintiff may also provide a declaration explaining loss or unavailability, along with a proposed order to accept a copy in lieu of the original. (Cal. Rules of Court, rule 3.1806; Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124.). (June 17, 2024 Order at pp. 1:18-2:2.) The Courts June 17, 2024 minute order in this action provides, inter alia, that [t]he Court continues the hearing on the request for Default Judgment as to defendant Atrium Ame Inc., as follows: Plaintiff to file and serve the corrected Proof of Service and the Declaration and Order regarding the unavailability of the note by July 17, 2024. It appears that Plaintiff filed the corrected Proof of Service but the default clerk rejected it. It appears that the default clerk may have made an error based upon the name in the docket for this file which identifies the defendant as Atrium AME, Inc. The Court accepts the corrected Proof of Service. However, it does not appear that Plaintiff filed the declaration and proposed order regarding the original of the note. The Court will discuss these issues with counsel at the hearing. DATED: August 13, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court

Ruling

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