Case Name: Ampro Systems, et al. v. Da Guan, et al.

Case No.: 17CV311868

I. Factual and Procedural Background

This is an embezzlement action filed by plaintiffs Ampro Systems, Inc. (“Ampro”) and Consolitech Electronics, Inc. (“Consolitech”) (collectively “Plaintiffs”) against defendants Charlene Qian (“Qian”), Xian Li aka James Li (“Li”), Thomas Zdimal, Kent Wang, Kathleen Wang, Xiao Rong Zhou, Ruo (Laura) Li, Zhengmao Zhu, LXRZ, Inc., Firetide, Inc. (“Firetide”), George Zhu (“Zhu”), Xin Liu (“Liu”), and Da Yong Guan (“Guan”) (collectively “Defendants”).

As alleged in the Third Amended Complaint (“TAC”), Ampro and Consolitech are circuit board assembly and manufacturing companies owned by Elliot Wang (“Wang”) and located in Fremont, CA. (TAC, ¶¶ 1-2, 23.) As Wang lived in Taiwan, he relied on individuals in California to run his companies. (Id. at ¶ 24.) Around 2004 and 2005, Wang hired Qian and Li (“Employee Defendants”) to manage Plaintiffs and entrusted all operations to them. (Id. at ¶ 25-26.) The Employee Defendants, however, abused the trust and discretion they had been given. (Id. at ¶ 27.) Among other things, they made numerous unauthorized payments to themselves, Qian’s family members (defendants Thomas Zdimal, Kent Wang, Kathleen Wang), Li’s family members (defendants Rong Zhou, Ruo (Laura) Li, and Zhengmao Zhu), and Li’s sham corporation (LXRZ, Inc.); used company funds for personal expenses such as vacations and a home remodel; misappropriated a company-wide manufacturing bonus instead of distributing it to Plaintiffs’ employees; made unauthorized contributions to their retirement and life insurance accounts; and misused Plaintiffs’ unemployment insurance account. (Id. at ¶¶ 28-29, 31-32.) They also conspired with Zhu, an employee of Firetide, to provide favorable pricing to Firetide and kickbacks to Zhu through straw persons Liu and Guan, and arranged to use Consolitech funds to remodel the private residence of Zhu and Liu. (Id. at ¶ 33.)

Wang received regular financial reports from the Employee Defendants but these did not indicate theft of any kind and he had no reason to question the Employee Defendants’ loyalty. (Id. at ¶ 43.) In August 2015, however, red flags were raised when a consultant hired by Wang in Taiwan traveled to California, inquired about the manufacturing bonuses he saw on the financial reports, and was met with resistance from the Employee Defendants regarding his inquiries. (Id. at ¶¶ 44-45.) This resulted in a second trip by the consultant to California, which led to an investigation that uncovered the theft. (Ibid.)

The TAC asserts nine causes of action for: (1) conversion; (2) breach of fiduciary duty; (3) fraud by intentional misrepresentation; (4) fraud by concealment; (5) negligent misrepresentation; (6) violation of Penal Code section 496; (7) money had and received; (8) negligence; and (9) breach of contract.

Currently before the Court are a demurrer and motion to strike filed by Firetide, both of which Plaintiffs oppose.

II. Demurrer

As a preliminary matter, Plaintiffs contend the demurrer should be overruled because Firetide failed to comply with its meet and confer obligations under Code of Civil Procedure section 430.41 (“Section 430.41”) and “fabricate[d] its alleged meet and confer efforts” in the declaration provided in support of its demurrer. (Opp. at p. 4:3-5:25.)

Section 430.41 provides in relevant part that, at least five days before any responsive pleading is due, the demurring party must meet and confer in person or by phone with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., § 430.41, subd. (a).) As part of the meet and confer process, the demurring party must identify the specific claims it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 430.41, subd. (a)(1).) If an agreement cannot be reached and a demurrer is filed, the demurring party must file a declaration stating the means by which he or she met and conferred with the party who filed the pleading. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Here, Firetide filed a declaration indicating it initiated meet and confer efforts via email on August 13, 2018 and continued to exchange e-mails with Plaintiffs through August 20, 2018, the day the demurrer was filed, but were unable to come to an agreement. (Russell Decl., ¶¶ 2-3.) In opposition, Plaintiffs assert Firetide’s efforts were inadequate because it did not meet and confer in person or by phone and only provided citations to legal authorities in support of its position on August 17, 2018, three days before the demurrer was filed. (Pasic Decl., ¶¶ 4, 9.) They also contend Firetide’s declaration regarding its meet and confer efforts “forges [the] initial August 13, 2018 email to [their] counsel to suggest to this Court that [it] provided the legal authorities for the demurrer on August 13, 2018.” (Opp. at p. 5:16-18.)

At the outset, nothing in the record suggests Firetide misrepresented its meet and confer efforts or failed to adequately comply with its obligations under Section 430.41. Both parties agree Firetide initiated meet and confer discussions on August 13, 2018. Moreover, though Plaintiffs assert Firetide did not provide legal support for its position until August 17, 2018, three days before the demurrer was filed, both parties include in their declarations an e-mail from Firetide’s counsel dated August 13, 2018 at 1:45 p.m. in which she provides legal support for Firetide’s position. (See Pasic Decl., Exh. D; Russell Decl., Exh. A.) Even if Firetide did not adequately comply with its meet and confer obligations, it would not be a basis for overruling the demurrer as Section 430.41 clearly states a demurrer may not be overruled for insufficient meet and confer efforts. (See Code Civ. Proc., § 430.41, subd. (a)(4).) The Court will therefore address the merits of the demurrer.

Firetide demurs to the first through eighth causes of action on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, subds. (e), (f).)

A. Failure to State Sufficient Facts

In advancing its arguments, Firetide does not address each cause of action sequentially. Accordingly, the Court will address the claims in the order they are presented in Firetide’s memorandum of points and authorities, with one caveat. Firetide discusses the fifth cause of action for negligent misrepresentation in two different argument sections of its memorandum, first, with respect to issues pertaining to the third, fourth and fifth causes of action and next, relative to arguments advanced relative to the second, fifth and eighth causes of action. To avoid confusion, the Court will address the fifth cause of action individually and discuss all assertions relating to that claim therein.

1. Third and Fourth Causes of Action

The third cause of action for intentional misrepresentation alleges the Employee Defendants knowingly sent fraudulent financial reports to Wang that overstated expenses and understated profits. The fourth cause of action for fraudulent concealment pleads the Employee Defendants concealed facts in the financial reports relating to their theft. With respect to Firetide’s conduct, both claims plead it conspired with and aided and abetted the Employee Defendants’ fraudulent reporting.

Firetide asserts the intentional misrepresentation and fraudulent concealment claims are inadequately pled because Plaintiffs fail to specify “how, when, where, to whom, and by what means” any alleged misrepresentation or concealment occurred. (Dem. at p. 13:21-22.) It contends Plaintiffs instead merely allege it agreed to, conspired in, and aided and abetted a scheme to receive manufacturing services at below-market rates. Though not clearly articulated, Firetide appears to be asserting these claims fail because Plaintiffs do not plead specific facts relating to matters it misrepresented and concealed and only alleges facts relating to its aiding and abetting or participation in a conspiracy. This argument is not well-taken.

When fraud is the alleged object of a conspiracy, each element of the fraud must be pled with particularity. (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 210-212.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, internal citations and quotation marks omitted) and applies to claims for both intentional and negligent misrepresentation claims (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166). This rule, however, is “intended to apply to apply to affirmative misrepresentations” and not to nondisclosures because “[h]ow does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Alfaro v. Community Housing Imp. System & Planning Ass’n., Inc. (2009) 171 Cal.App.4th 1356, 1384.) Furthermore, less specificity is required when the facts involved lie more in the knowledge of the opposing party. (Ibid.) As such, where fraudulent concealment is involved, courts are more concerned with whether the allegations provide the defendants with sufficient notice of the claims alleged against them. (See Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1200.)

Thus, relative to the fraudulent concealment claim, the fact Plaintiffs do not plead how, when, where, to whom, and by what means the concealment occurred does not render it defective. Moreover, the averments in this cause of action suffice to place Firetide on notice as to what is alleged against it. Plaintiffs plead the Employee Defendants concealed their theft in the financial reports and Firetide conspired with and aided and abetted in the Employee Defendants’ actions. (TAC, ¶¶ 72-73, 76.) This is adequate.

As for the intentional misrepresentation claim, it is not insufficiently pled. Relative to this claim, Plaintiffs allege the Employee Defendants overstated expenses and understated profits in the monthly financial reports they sent to Wang via e-mail, and that Firetide conspired with and aided and abetted their sending of fraudulent reports. (TAC, ¶¶ 63-64, 67.) These averments clearly plead how, when, where, to whom, and by what means the misrepresentations occurred, and also allege the basis for Firetide’s liability.

Though Firetide takes issue with the fact that neither of these claims state specific facts relating to matters it misrepresented or concealed, this is not a basis for finding these causes of action deficient. It is clear from the pleading that Firetide’s liability for these causes of action is based on vicarious and not direct liability. As such, Plaintiffs would not be alleging Firetide directly misrepresented or concealed a matter.

Accordingly, Firetide’s demurrer to the third and fourth causes of action on the ground of failure to state sufficient facts is OVERRULED.

2. Sixth Cause of Action

The sixth cause of action is for violation of Penal Code section 496 (“Section 496”), which prohibits the knowing purchase or receipt of stolen property. Plaintiffs allege Defendants received, sold, concealed, or aided in the sale or concealment of property they knew was stolen. They therefore seek treble damages under the statute. (See Code Civ. Proc., § 496, subd. (c) [a plaintiff may bring a civil action for three times the amount of actual damages sustained].)

Firetide first contends no cause of action has been stated because Plaintiffs do not plead their fraud claims with requisite particularity and, instead, only “vaguely allege the conclusion that [it] ‘knowingly’ ‘received property that had been stolen or obtained by theft.’” (Dem. at p. 15:13-18.) This argument is not persuasive.

At the outset, Firetide cites no authority for the proposition a plaintiff must plead fraud with particularity to state a claim under Section 496 and the Court is unaware any such authority exists. Section 496 states in relevant part that “[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained” is liable for violating the statute. (Pen. Code, § 496, subd. (a).) Here, Plaintiffs plead such facts, namely that Defendants knowingly received property that was stolen. (TAC, ¶¶ 92-93.)

Next, Firetide asserts it cannot be liable for both fraud in the theft of Plaintiffs’ money and receiving that money as stolen property, citing an unpublished federal district court case, Grouse River Outfitters Ltd v. NetSuite, Inc. (N.D. Cal. Oct. 12, 2016, No. 16-CV-02954-LB) 2016 WL 5930273, in support.

For context, in Grouse, an outdoor equipment retailer brought an action against a commercial software system provider based on the latter’s failure to provide it with the promised comprehensive software system. (Grouse, supra, 2016 WL 5930273 at * 1.) Among other things, the retailer alleged the software provider mispresented the capabilities of its software, its experience in installing such a system, and ultimately its ability to provide a system that could perform as promised. (Ibid.) The complaint included fraud-based causes of action as well as a claim for violation of Section 496 based on the software provider’s theft of the retailer’s money by false pretense and consequent receipt of the stolen money. (Ibid.) The court held no cause of action under Section 496 had been stated because, among other things, there could not be dual civil liability for fraud in the taking of money and receiving that money as stolen property. (Id. at * 14.) The Court disagrees with the Grouse court’s conclusion.

In concluding dual civil liability was unavailable for claims for fraud and violations of Section 496, the Grouse court misinterpreted Section 496 and adopted a position contrary to California law.

First, the Grouse court asserted the “plain language of § 496(a) prevents [the plaintiff] from leveraging…[fraud by theft] into a damages-trebling § 496(a) violation.” (Grouse, supra, 2016 WL 5930273 at * 15.) This is inaccurate. Section 496, subdivision (a) provides in relevant part: “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.” As such, this subdivision merely states a person who obtains property by theft may not be convicted for both the theft and receipt of stolen property. (See People v. Allen (1999) 21 Cal.4th 846, 857-861.) The plain language in this provision does not bar dual civil liability for fraud and violations of Section 496.

Second, the Grouse court’s position is contradicted by California law. As the court itself acknowledged, at least one California case, Bell v. Feibush (2013) 212 Cal.App.4th 1041, upheld civil liability for both fraud-based claims and a claim for violation of Section 496. (Grouse, supra, 2016 WL 5930273 at * 15.) Grouse attempted to distinguish Bell by stating the defendant there did not merely receive the property obtained by fraud but also withheld it when the plaintiff asked for it back and this “small additional conduct was enough, in Bell’s view to avoid [Section 496’s] dual liability bar.” (Ibid.) But this analysis is problematic because there is no statutory bar against civil dual liability in the first instance and nothing in the Bell decision indicated dual civil liability was upheld because the defendant committed “additional conduct” violating Section 496. (See Bell, supra, 212 Cal.App.4th at 1048-50.)

As such, the demurrer to this claim is not sustainable on the basis there can be no dual civil liability for fraud and violations of Section 496.

For the reasons stated, Firetide’s demurrer to the sixth cause of action on the ground of failure to state sufficient facts is OVERRULED.

3. Second and Eighth Causes of Action

The second cause of action for breach of fiduciary duty pleads the Employee Defendants breached their fiduciary duties to Plaintiffs when they acted against Plaintiffs’ interests, and the other defendants conspired with and aided and abetted their actions. The eighth cause of action for negligence alleges Firetide breached the duty of care it owed Plaintiffs as a business partner and customer when it failed to prevent the schemes involving kickbacks to its representatives.

With respect to the second cause of action, Firetide asserts it fails because Plaintiffs do not and cannot allege it owed them a fiduciary duty. This contention is unsupported.

First, Firetide cites no authority in support of its argument. As such, its position is unsubstantiated. Second, Firetide’s assertion is otherwise contradicted by California law. As stated, Firetide’s liability for this claim is based on aiding and abetting and conspiracy theories of liability. Relative to aiding and abetting liability, courts have held a defendant may be liable for aiding and abetting a breach of fiduciary duty even when it does not itself owe a direct duty to the plaintiff. (See, e.g., Am. Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1476; Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.) Moreover, with respect to civil conspiracy liability, though it is generally true a party cannot be held liable for civil conspiracy if he or she did not personally owe the duty violated, “an exception to this rule exists when the participant acts in furtherance of [his or her] own financial gain.” (Mosier v. S. California Physicians Ins. Exch. (1998) 63 Cal.App.4th 1022, 1048; see also Skarbrevik v. Cohen, England & Whitfield (1991) 231 Cal.App.3d 692, 709.) Here, Plaintiffs plead Firetide acted to advance its own financial interest of receiving manufacturing services at below market rates. (TAC, ¶ 42.) Thus, Plaintiffs’ failure to plead Firetide directly owed them a fiduciary duty does not render this claim deficient.

As for the eighth claim for negligence, Firetide contends no cause of action exists because Plaintiffs “cannot, as a matter of law, allege the existence of any legal duty (of reasonable care) owed by Firetide to Plaintiffs.” (Dem. at p. 17:11-12.) The only authority it cites in support is Labor Code section 2865 (“Section 2865”). Its reliance on this statute is misplaced. Section 2865 does not state that a business partner and customer does not a duty of care to prevent schemes such as the one alleged or even discuss the issue of what duties of care exist. Rather, that statute merely states “[a]n employee who is guilty of a culpable degree of negligence is liable to his employer for the damage thereby caused to the employer.” (Lab. Code, § 2865.) As such, Section 2865 is inapposite and Firetide presents no basis for concluding Plaintiffs cannot allege the existence of a legal duty owed by Firetide.

As such, the demurrer to the second and eighth causes of action on the ground of failure to state sufficient facts is OVERRULED.

4. Fifth Cause of Action

The fifth cause of action for negligent misrepresentation alleges the Employee Defendants negligently misrepresented facts relating to Plaintiffs’ income, expenses, profits, and losses, and the other defendants (including Firetide) conspired with and aided and abetted the Employees Defendants’ negligent reporting. As stated earlier, Firetide asserts this claim fails for the same reasons articulated in connection with the third and fourth causes of action and the second and eighth claims. Specifically, Firetide asserts the negligent misrepresentation claim fails because it is insufficiently specific and does not allege the existence of a legal duty. For the reasons previously discussed, these contentions lacks merit.

Accordingly, the demurrer to the fifth cause of action on the ground of failure to state sufficient facts is OVERRULED.

5. First and Seventh Causes of Action

The first cause of action for conversion alleges Defendants converted money from Plaintiffs’ business operations. The seventh cause of action is a common count for money had and received and alleges Defendants received money intended to be used for Plaintiffs’ benefit and did not return it.

Firetide asserts these claims fail because Plaintiffs do not allege a certain, identifiable sum of money. This contention has merit.

If money is the subject of a cause of action for conversion, a specific, identifiable sum must be pled. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 397; Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 235.) Similarly, to state a common count for money had and received, a plaintiff must allege the “defendant is indebted to the plaintiff in a certain sum for money had and received.” (Farmers Ins. Exch. v. Zerin (1997) 53 Cal.App.4th 445, 460, emphasis added, internal citations and quotation marks omitted; Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623.)

Here, Plaintiffs do not plead a certain sum of money that has been converted or is owed. Rather, they merely state Defendants exercised control over their personal property or that a general indebtedness exists. (TAC, ¶¶ 47, 97.) In opposition, Plaintiffs contend a specific sum does not need to be pled and the amount of money at issue can be a matter of proof at trial. The authorities they cite, however, do not support that position or the proposition a plaintiff is not required to plead an identifiable sum of money.

Therefore, the Firetide Defendants’ demurrer to the first and seventh causes of action on the ground of failure to state sufficient facts is SUSTAINED with 10 days’ leave to amend. The time to amend shall run from the date of service of this Order.

B. Uncertainty

Firetide asserts the first through eighth causes of action are uncertain because it “cannot ascertain…facts sufficient to apprise [it] of the claims against it (as distinguished from the host of other defendants named in the TAC).” (Dem. at p. 18: 25-26.) It does not further elaborate or discuss this argument relative to any individual causes of action.

Demurrers for uncertainty are disfavored and will be sustained only where the allegations of the pleading are so unintelligible the defendant cannot reasonably respond them, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.; see also Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2.)

Here, the only apparent basis for Firetide’s demurrer on the ground of uncertainty is that the defendants are sometimes referred to collectively. A review of the pleading, however, indicates that Plaintiffs’ allegations are far from unintelligible. In fact, Plaintiffs rarely refer to the defendants collectively and, more often than not, specify what each group of defendants did relative to each cause of action. With respect to Firetide in particular, each of the claims alleged specifically pleads acts directly committed by it or the role it played in conspiring and aiding and abetting in the Employees Defendants’ misconduct. For example, the eighth cause of action for negligence alleges Firetide breached its duty of care to Plaintiffs by failing to prevent schemes by its representative to receive kickbacks while the third through fifth claims based on fraud plead Firetide conspired with and aided and abetted the Employee Defendants’ fraudulent reporting by accepting stolen funds and below-market services. (See TAC, ¶¶ 67, 76, 85, 101-102.) These averments are sufficient to apprise Firetide of what claims and misconduct are alleged against it. The fact that Plaintiffs occasionally refer to the defendants collectively does not render the claims uncertain.

Firetide’s demurrer to the first through eighth causes of action on the ground of uncertainty is therefore OVERRULED.

IV. Motion to Strike

Firetide moves to strike allegations relating to punitive damages, including the prayer for such damages; allegations Plaintiffs are entitled to treble damages under Section 496; and the prayers for damages authorized by statute, attorney’s fees, and equitable relief. Its motion is made on the grounds the matter sought to be stricken is improper and not drawn in conformity with the law of this state. (See Code Civ. Proc., § 436, subds. (a)-(b).)

As a preliminary matter, the ground of failure to draw or file a pleading in conformity with the law only authorizes striking a pleading due to improprieties in its form or the procedures pursuant to which it was filed. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) Here, Firetide advances no arguments that correspond with this ground. Thus, the only appropriate basis for its motion to strike in light of the contentions presented is that the material is improper.

A. Allegations Relating to and Prayer for Punitive Damages

Firetide seeks to strike paragraph 37 in its entirety and portions of paragraphs 52, 60, 69, 78, 87, and 95, which contain allegations Defendants acted with oppression, fraud, and malice thereby entitling Plaintiffs to punitive damages. It also seeks to strike the prayer for punitive damages.

Civil Code section 3294 (“Section 3294”), subdivision (a) provides that punitive damages are recoverable where the defendant is guilty of malice, oppression or fraud. In order “[t]o support punitive damages, the complaint . . . must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Havenson (1976) 65 Cal.App.3d 306, 316-317, internal citations omitted.)

Firetide argues Plaintiffs’ allegations of malice, oppression and fraud are conclusory but does not further elaborate. It includes references to authority discussing what facts must be pled to support an allegation of malice but at no point explains how Plaintiffs’ averments are inadequately pled. Firetide’s assertion is not well-taken.

Here, among other things, Plaintiffs allege Firetide engaged in fraud, which Section 3294 defines as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant to deprive a person of property or legal rights or a resulting injury. (Civ. Code, § 3294, subd. (c)(3).) Moreover, the Court overruled Firetide’s demurrer to the fraud-based claims in the third through fifth causes of action; thus, irrespective of whether there are facts supporting an allegation of malice, Plaintiffs otherwise allege fraud and there is no indication these averments cannot support a request for punitive damages. (See Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610.)

Firetide also asserts the request for punitive damages cannot be factually supported because the TAC does not state any claims against it. But it failed to demonstrate in the first instance that Plaintiffs failed to state any cause of action against it. As such, the motion to strike cannot be granted on the basis the TAC does not state a claim against Firetide.

Accordingly, Firetide’s motion to strike the punitive damages allegations is DENIED.

B. Treble Damages under Section 496 and Prayer for Statutory Damages and Attorney’s Fees

Firetide moves to strike paragraphs 89 and 94, which plead an entitlement to treble damages under Section 496 based on Defendants’ violation of that statute, and the prayer for statutory damages and attorney’s fees. In support, it advances the same arguments set forth in its demurrer regarding Plaintiffs’ failure to plead a claim for violation of Section 496. Firetide asserts that, because no violation of that statute has been stated, Plaintiffs’ request for treble damages under that Section 496 and “request for attorney’s fees (per that same statute) [are] improper.” (Mtn. at p. 9:9-11.)

For the reasons previously discussed, Firetide did not demonstrate Plaintiffs inadequately plead a violation of Section 496. Moreover, with respect to the prayer for attorney’s fees in particular, Firetide baldly asserts it relates solely to the claim for violation of Section 496 but the TAC does not indicate the prayer is tethered solely to this cause of action. As such, Firetide’s argument lacks merit.

For the reasons stated, Firetide’s motion to strike allegations relating to and the prayer for treble damages under Section 496 and attorney’s fees is DENIED.

C. Prayer for Equitable Relief

Firetide asserts the prayer for equitable relief should be stricken because “Plaintiffs fail to allege any cause of action that provides for recovery of any equitable remedies, ‘including but not limited to the imposition of a Constructive Trust.’” (Mtn. at p. 9:15-17.) It does not further elaborate and its argument consists of this single sentence. This is insufficient.

A supporting memorandum must include a discussion of legal authority in support of the position advanced and any unsubstantiated argument will not be further addressed. (See Cal. Rules of Court, rule 3.1113(b); People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)

Accordingly, Firetide’s request to strike the prayer for equitable relief is DENIED.