Case Number: BC513740 Hearing Date: June 04, 2014 Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

ESKENAZI, etc. vs. v. RX, etc., et al. (BC513740)

Counsel for defendants/moving party: Farooq Mir (Nelson, etc.)
Counsel for plaintiff/opposing party: Nicholas Tepper (Tepper, etc.)

Defendants’ motion for judgment on the pleadings (filed 3/10/14):

First cause of action for breach of contract: Deny as to both Sacks defendants. In addition to Rx Blue Star Solutions (its LLC status not designated in the agreement), Ex. A to the FAC identifies Shim Sacks and Yakov Sacks as “parties” without limiting their capacity.

Deny, as to NRP, LLC an alleged party to an apparently express confidentiality agreement, thus allowing plaintiff to “plead the legal effect of the contract rather than its precise language.” Construction, etc. vs. TIG, etc. (2002) 29 Cal.4th 189, 1998-199. Mir’s declaration is of no effect for purposes of this motion. Even assuming a request for judicial notice would be appropriate, the court has not been requested to do so.

Grant, as to all other defendants (Nelson; Pharm Finance, LLC) without leave to amend, as plaintiff’s opposition concedes their being non-parties to the agreements.

Second cause of action for fraud: Grant as to all Defendants, with leave to amend. No allegations have been made as to defendants Michael Nelson and Pharm Finance, LLC. With regard to NRP and Rx, it is not alleged who – with authority to act on behalf of these entities – engaged in fraud. Regarding the remaining defendants, they are merely grouped together with the same conduct and intent attributed all. This is insufficient to plead a cause of action for fraud. Plaintiff concedes as much and believes he can cure the deficiencies with leave to amend.

Plaintiff is granted leave either to file and serve a writing by 6/13/14 indicating no intent to amend the complaint or to file and serve a second amended complaint by that date. If plaintiff elects the latter, a red-line copy of the amended complaint showing the changes from the previous complaint is to be concurrently provided to defendants. If defendants intend to file a demurrer to the second amended complaint, defendants must lodge directly in Dept. 73 the red-line copy of the amended complaint with their demurrer.

Unless waived, notice of ruling by moving party.