2012-00122892-CU-BC

Sundiada Triado vs. Aliaune Thiam

Nature of Proceeding:     Motion for Judgment on the Pleadings (Aliaune Thiam)

Filed By:   Davis, Joseph A.

Defendant Aliaune Tham’s (“Akon”) motion for judgment on the pleadings is denied.

Akon’s request for judicial notice is granted.  Plaintiff’s request for judicial notice of her
motion to amend the complaint set for hearing on January 7, 2014 is granted, but only
to the extent that the Court takes judicial notice that Plaintiff has filed such a motion.

Plaintiff alleges causes of action for breach of contract, conversion, money had and
received, fraud, and breach of the implied covenant of good faith and fair dealing
against Akon, defendant Omar Thiam, and defendant Kon Live, LLC (collectively the
“Kon Live Defendants”).  Plaintiff alleges she signed a contract with the Kon Live
Defendants pursuant to which they agreed Akon would appear at an event on May 28,
2011 for which Plaintiff would pay Akon $20,000.  Plaintiff alleges Akon did not appear
and that the Kon Live Defendants failed to return Plaintiff’s $10,000 deposit.

Akon seeks judgment on the pleadings on the basis that the contract attached to the
complaint is between Plaintiff and Kon Live, LLC such that there is no basis for him to
be held liable under the contract.  Plaintiff opposes the motion on the basis that she
has alleged that all defendants were the alter-egos of each other and in any event
requests leave to amend to add additional alter-ego allegations.  Plaintiff currently has
a motion for leave to amend set to be heard on January 7, 2014.

Before reaching Plaintiff’s argument regarding alter-ego allegations, a more
fundamental issue exists which was not addressed in Plaintiff’s opposition.  Indeed,
even if Akon is correct with respect to his liability under the contract, the instant motion
seeks judgment on the pleadings as to the entire complaint, and does not separately
seek judgment on the pleadings as to any individual cause of action.  Specifically,
Akon moves for judgment on the pleadings as to the entire complaint “on the grounds
that the Complaint does not state facts sufficient to constitute a cause of action against
Akon.”  (Notice i:5-6.)  As Akon correctly recognizes, a motion for judgment on the
pleadings serves the same purpose as a general demurrer.  Thus, where a motion for
judgment on the pleadings is taken as to an entire pleading, the motion could only be
granted where every cause of action fails to state facts sufficient to constitute a cause
of action given that a demurrer to an entire complaint can only be sustained based on
a similar showing.  ( Warren v. Atchison, T. & S. Ry. Co. (1971) 19 Cal.App.3d 24, 29
[“judgment of dismissal, having been based upon demurrers attacking the complaint as
a whole, can be affirmed only if no count of the complaint states facts sufficient to
entitle plaintiff to relief on any theory.”])

Akon’s sole argument is that he is not a party to the contract attached to the complaint.
However, Akon fails to analyze in any manner, Plaintiff’s second cause of action for
conversion or fourth cause of action for fraud, neither of which appear dependant upon
Akon being a party to the subject contract attached to the complaint.  Indeed, his
moving papers only appear to specifically argue that the first cause of action for breach
of contract and the third causes of action for common (money had and received) are
subject to a motion for judgment on the pleadings.  (Mot. 5:13-6:15.)  However, in the
second cause of action, Plaintiff alleges that the Kon Live Defendants (which definition
includes Akon), have possession of Plaintiff’s $10,000 which they have refused to
return and the cause of action does not rely upon the contract attached to the
complaint to which Akon argues he is not a party.  (Comp. ¶¶ 15-17.)  Akon fails to
present any argument as to how the second cause of action fails to state a cause of
action even if he were not a party to the subject contract.  In the Fourth Cause of
Action, Plaintiff alleged that the Kon Live Defendants (again including Akon) falsely
promised that Akon would appear at the May 28, 2011 event in order to induce Plaintiff
to pay $10,000 and that they never intended to perform such promise.  (Comp. ¶¶ 26-
28.)  Again, Akon fails to present any argument as to how the fourth cause of action
fails to state facts sufficient to constitute a cause of action.

As a result, given that Akon moved for judgment on the pleadings as to the entire
complaint on the basis that he was not a party to the contract attached to the
complaint, and his failure to demonstrate that all causes of action fail on this basis, the
motion must be denied.

The Court therefore need not consider Plaintiff’s request for leave to amend at this
time.  As noted, Plaintiff’s motion for leave to amend is set for January 7, 2014.

This minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.

Item  3     2012-00122892-CU-BC

Sundiada Triado vs. Aliaune Thiam

Nature of Proceeding:    Motion for Judgment on the Pleadings (Omar Thiam)

Filed By:   Davis, Joseph A.

Defendant Omar Thiam’s motion for judgment on the pleadings is denied.

Defendant’s request for judicial notice is granted.  Plaintiff’s request for judicial notice
of her motion to amend the complaint set for hearing on January 7, 2014 is granted,
but only to the extent that the Court takes judicial notice that Plaintiff has filed such a
motion.

Plaintiff alleges causes of action for breach of contract, conversion, money had and
received, fraud, and breach of the implied covenant of good faith and fair dealing
against Defendant, Defendant Aliaune Tham (“Akon”), and defendant Kon Live, LLC
(collectively the “Kon Live Defendants”).  Plaintiff alleges she signed a contract with
the Kon Live Defendants pursuant to which they agreed Akon would appear at an
event on May 28, 2011 for which Plaintiff would pay Akon $20,000.  Plaintiff alleges
Akon did not appear and that the Kon Live Defendants failed to return Plaintiff’s
$10,000 deposit.

Defendant seeks judgment on the pleadings on the basis that the contract attached to
the complaint is between Plaintiff and Kon Live, LLC such that there is no basis for him
to be held liable under the contract.  Plaintiff opposes the motion on the basis that she
has alleged that all defendants were the alter-egos of each other and in any event
requests leave to amend to add additional alter-ego allegations.  Plaintiff currently has
a motion for leave to amend set to be heard on January 7, 2014.             Before reaching Plaintiff’s argument regarding alter-ego allegations, a more
fundamental issue exists which was not addressed in Plaintiff’s opposition.  Indeed,
even if Defendant is correct with respect to his liability under the contract, the instant
motion seeks judgment on the pleadings as to the entire complaint, and does not
separately seek judgment on the pleadings as to any individual cause of action.
Specifically, Defendant moves for judgment on the pleadings as to the entire complaint
“on the grounds that the Complaint does not state facts sufficient to constitute a cause
of action against [Defendant].”  (Notice i:5-6.)  As Defendant correctly recognizes, a
motion for judgment on the pleadings serves the same purpose as a general demurrer.
Thus, where a motion for judgment on the pleadings is taken as to an entire pleading,
the motion could only be granted where every cause of action fails to state facts
sufficient to constitute a cause of action given that a demurrer to an entire complaint
can only be sustained based on a similar showing.  ( Warren v. Atchison, T. & S. Ry.
Co. (1971) 19 Cal.App.3d 24, 29 [“judgment of dismissal, having been based upon
demurrers attacking the complaint as a whole, can be affirmed only if no count of the
complaint states facts sufficient to entitle plaintiff to relief on any theory.”])

Defendant’s sole argument is that he is not a party to the contract attached to the
complaint.  However, Defendant fails to analyze in any manner, Plaintiff’s second
cause of action for conversion or fourth cause of action for fraud, neither of which
appear dependant upon Defendant being a party to the subject contract attached to
the complaint.  Indeed, his moving papers only appear to specifically argue that the
first cause of action for breach of contract and the third causes of action for common
(money had and received) are subject to a motion for judgment on the pleadings.
(Mot. 5:13-6:15.)  However, in the second cause of action, Plaintiff alleges that the Kon
Live Defendants (which definition includes Defendant), have possession of Plaintiff’s
$10,000 which they have refused to return and the cause of action does not rely upon
the contract attached to the complaint to which Defendant argues he is not a party.
(Comp. ¶¶ 15-17.)  Defendant fails to present any argument as to how the second
cause of action fails to state a cause of action even if he were not a party to the
subject contract.  In the Fourth Cause of Action, Plaintiff alleged that the Kon Live
Defendants (again including Defendant) falsely promised that Akon would appear at
the May 28, 2011 event in order to induce Plaintiff to pay $10,000 and that they never
intended to perform such promise.  (Comp. ¶¶ 26-28.)  Again, Defendant fails to
present any argument as to how the fourth cause of action fails to state facts sufficient
to constitute a cause of action.

As a result, given that Defendant moved for judgment on the pleadings as to the entire
complaint on the basis that he was not a party to the contract attached to the
complaint, and his failure to demonstrate that all causes of action fail on this basis, the
motion must be denied.

The Court need not consider Plaintiff’s request for leave to amend at this time.  As
noted, Plaintiff’s motion for leave to amend is set for January 7, 2014.

This minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.