Case Number: BC688462 Hearing Date: August 31, 2018 Dept: 37

CASE NAME: Branded Online, Inc. v. Jacobs, et al.

CASE NO.: BC688462

HEARING DATE: 8/31/18

DEPARTMENT: 37

CALENDAR NO.: 7

FILING DATE: 12/27/17

FSC/TRIAL DATE: None

NOTICE: OK

SUBJECT: Demurrer to the First Amended Cross-Complaint and Motion to Strike

MOVING PARTY: Cross-Defendants Branded Online, Inc. and Ethan Rose[1]

OPPOSING PARTY: Plaintiff Terre Jacobs
COURT’S TENTATIVE RULING

The court SUSTAINS the demurrer to the first cause of action as to Cross-Defendant Branded Online with 20 days leave to amend. The demurrer is otherwise OVERRULED. The court DENIES the motion to strike. Counsel for Defendant to give notice.
STATEMENT OF THE CASE

This case arises from allegations that Defendant and Cross-Complainant Terre Jacobs (“Jacobs”) and Defendants Feel the Piece LLC (“FTP”) and Feel the Piece by Terre Jacobs, LLC (“FTP TJ”) breached a written contract with Plaintiff Branded Online, Inc. (“Branded Online”), whereby Plaintiff was granted the exclusive worldwide right and license to package and distribute Defendants’ merchandise by means of an online store (the “Agreement”). In the Complaint, Plaintiff asserts six causes of action for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) quantum meruit; (4) open book account; (5) accounting and (6) injunctive relief.

Jacobs cross-complains against Branded Online and Cross-Defendants Ethan Rose (“Rose”) and Jan Nugent (“Nugent”), alleging that Rose, on behalf of Branded Online, represented to Jacobs in September 2014 that Branded would increase sales of her product line from $500,000 and $1.44 million in two years. (FACC ¶¶ 11-12.) Jacobs further alleges that Branded Online is wrongfully holding over $60,000 from the sales of clothes she designed.

In the First Amended Cross-Complaint (“FACC”), Jacobs alleges five causes of action for: (1) fraud – intentional misrepresentation against Rose and Branded Online; (2) breach of fiduciary duty against Rose; (3) declaratory relief against Rose and Branded Online; (4) equitable indemnity against Rose and (5) conspiracy to defraud against Rose and Branded Online. Jacobs does not allege any causes of action against Nugent in the FACC.

Cross-Defendants Branded Online and Rose (collectively “Cross-Defendants”) now demur to the first, second, fourth and fifth causes of action of the FACC on the grounds that they fail to state causes of action. Cross-Defendants also move to strike the allegations related to Cross-Complainant’s claim for punitive damages. Cross-Complainant Jacobs opposes the demurrer and motion to strike.
DEMURRER
I. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
II. Analysis
A. First Cause of Action for Fraud
1. Pleading Fraud and Specificity

The first cause of action for fraud consists of the following elements: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud—i.e., induce reliance; (4) justifiable reliance; and (5) resulting damage. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.) Fraud must be pleaded with specificity, meaning facts showing how, when, where, to whom, and by what means the representations were made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar).) In an action against a corporation, the burden is higher, requiring allegations of the names of the persons making the fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Ibid.)

Cross-Defendants allege that Plaintiff has not met the heightened pleading standard to allege fraud. (Dem. 5.) Cross-Defendants further argue that the FACC contains superficial allegations and generalized conclusions which do not allow them to fully understand the charges made against them. (Dem. 7.) The court disagrees with respect to Cross-Defendant Rose.

The first cause of action alleges that Rose, on behalf of Branded Online, made false representations of material fact when he verbally told Jacobs in September 2014 in Los Angeles: “(a) that the New York Company was a valid and legally organized company under the laws of the state of New York, (b) that cross-complainant had a membership interest in the purported New York limited liability company, (c) that the Agreement was for the benefit of cross-complainant, (d) that defendant would be compensated for the clothes and designs provided to plaintiff under the Agreement and (e) as an owner of the New York Company defendant was obligated to pay plaintiff for the online services provided to the New York Company.” (FACC ¶ 19.) The FACC further alleges that Feel the Piece by Terre Jacobs, LLC (“FTP TJ,” referred to as “New York Company” in the FACC) was not a valid and legally organized company under the laws of New York, that Jacobs had no membership or other ownership interest in FTP TJ, that the Agreement was for the benefit of Plaintiff and not Jacobs, that Jacobs would not and has never been compensated for the clothes and designs provided to Plaintiff under the Agreement and that Jacobs is a non-signatory to the Agreement. (FACC ¶ 20.) These allegations are plead with sufficient specificity for Cross-Complainant to state a cause of action for fraud against Cross-Defendant Rose.

Cross-Defendants argue that the FACC fails because Cross-Complainant has not alleged the exact date and exact location within Los Angeles where the alleged misrepresentations were made. (Dem. 5.) Cross-Defendants do not, however, cite any legal authority to support their argument that a plaintiff or cross-complainant must plead the exact date and location within a city to meet the specificity requirements. The court is not aware of any such legal authority. Here, Jacobs alleges that Rose made the allege misrepresentations to her in September 2014 in Los Angeles, California. (FACC ¶ 12.) At this stage of the proceedings, these allegations are sufficiently specific for Cross-Complainant to state the first cause of action against Rose.

Cross-Defendants further contend that Jacobs has not alleged specific facts regarding Cross-Defendants’ purported specific intent. (Dem. 6.) Cross-Defendants also contend that Jacobs has failed to plead sufficient facts regarding reliance. The court disagrees. The FACC alleges that Rose made the alleged misrepresentations in order to defraud and deceive Jacobs and to curry favor with Branded Online so that it would hire him. (FACC ¶¶ 22-23.) According to Jacobs, she reasonably and justifiably relied on Rose’s alleged misrepresentations because she believed that he was her friend and business partner and that he was acting as her agent and in her best interests at all times in setting up FTP TJ. (FACC ¶ 24.) On demurrer, a plaintiff or cross-complainant need only plead facts with “reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (See Rannard, supra, 26 Cal.2d at pp. 156-157.) At this stage of the proceedings, these allegations are sufficient for Jacobs to state the first cause of action against Rose.

The court, however, finds that Jacobs does not plead sufficient facts to state the first cause of action against Cross-Defendant Branded Online. Jacobs does not state facts regarding Rose’s authority to speak on behalf of Cross-Defendant Branded Online at the time the allegations were purportedly made. Cross-Complainant instead alleges that Rose was acting in the course and scope of a secret agency with Branded Online “for the express purpose of currying favor with BRANDED so that they would hire him,” which suggests that Rose was not an employee for Branded Online at the time. (FACC ¶ 23.) The court therefore finds that Cross-Complainant has not pled sufficient facts to state a cause of action for fraud against Cross-Defendant Branded Online, and the court SUSTAINS the demurrer to the first cause of action as to Branded Online with 20 days leave to amend.
2. Statute of Limitations

For a statute of limitations to bar a claim on demurrer, “the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, internal quotation marks omitted.) In general, a statute of limitations begins to run “when the cause of action is complete with all of its elements,” namely, wrongdoing, causation, and resulting harm. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) A cause of action for fraudulent misrepresentation is subject to a three-year statute of limitations. (Code Civ. Proc., § 338, subd. (d).)

“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’ [Citation.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (Fox); Nguyen v. W. Digital Corp. (2014) 229 Cal.App.4th 1522, 1553.)

Cross-Defendants next contend that the first cause of action is barred by the applicable statute of limitations. According to Cross-Defendants, Jacobs fails to plead sufficient facts regarding her alleged discovery of the fraud to plead delayed discovery. The court disagrees.[2]

According to the Jacobs, Rose is the Chief Operating Officer of FTP TJ (FACC ¶ 5), the individual who allegedly established FTP TJ (id. at ¶¶ 4-5) and the individual who signed the Agreement between FTP TJ and Branded Online (FACC ¶ 13, Ex. A). The FACC further alleges that Jacobs did not discover the alleged fraud until December 2017, when this action was filed against her by Branded Online. (FACC ¶ 25.) Cross-Complainant alleges that she did not discover the fraud because she believed that Rose was her friend, business partner and was acting in her best interests as her agent with respect to FTP TJ. (FACC ¶ 24.) At this stage of the proceedings, these allegations are sufficient for Jacobs to plead facts regarding the time and manner of discovery and her inability to have made earlier discovery despite reasonable diligence. (See Fox, supra, 35 Cal.4th at p. 808.) Cross-Defendants thus fail to demonstrate that the first cause of action is clearly and affirmatively barred by the statute of limitations on the face of the pleading, and their argument fails with respect to Rose.

For these reasons, the court OVERRULES the demurrer to the first cause of action against Cross-Defendant Rose.
B. Second Cause of Action for Breach of Fiduciary Duty

The elements of a cause of action for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) the damage proximately caused by that breach. (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140 (Hasso).) “A fiduciary duty under common law may arise ‘when one person enters into a confidential relationship with another. [Citation.] It is a question of fact whether one is either an investment adviser [citation] or a party to a confidential relationship that gives rise to a fiduciary duty under common law [citations].” (Ibid.)

In the case at hand, Cross-Complainant alleges that Rose owed her a fiduciary duty when he negotiated and signed the Agreement with Branded Online, as he was the alleged COO of FTP TJ and her agent and business partner. (FACC ¶ 29.) Cross-Defendants argue that the FACC does not plead sufficient facts to establish that Cross-Defendant Rose was a business partner of Jacobs given that the business entities in question are not partnerships. (Dem. 8.) The court disagrees.

The Agreement between Branded Online and FTP TJ that is attached as Exhibit A to the FACC is signed by Rose as the COO of FTP TJ. The FACC further pleads that Rose represented to Cross-Complainant that he had established FTP TJ for the mutual benefit of Rose and Jacobs and with Rose and Jacobs as its members. (FACC ¶¶ 4-5.) At this stage of the proceedings, Cross-Complainant need only plead ultimate facts of liability, and the court treats all properly pled facts as admitted. (Doe, supra, 42 Cal.4th at p. 550; Berkley, supra, 152 Cal.App.4th at p. 525.) Viewing the allegations of the FACC liberally and in context, these allegations are sufficient for Jacobs to plead the existence of a business relationship and agency relationship between her and Rose and to plead that Rose owed her a common-law fiduciary duty.[3] These allegations are sufficient for Jacobs to state the second cause of action against Cross-Defendant Rose, and the court OVERRULES the demurrer to the second cause of action.
C. Fourth Cause of Action for Indemnity

California Courts have defined the obligation of indemnity as “the obligation resting on one party to make good a loss or damage another has incurred.” (Bay Dev., Ltd. v. Sup. Ct. (1990) 50 Cal.3d 1012, 1029 (Bay).) The obligation of indemnity may arise under California law from either of two general sources. “First, it may arise by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances. Second, it may find its source in equitable considerations brought into play either by contractual language not specifically dealing with indemnification or by the equities of the particular case.” (Ibid., quoting E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506-507, emphasis in original.) Unlike with express contractual indemnity, implied contractual indemnity is a form of equitable indemnity. (Bay, 50 Cal.3d at p. 1029.)

The FACC alleges that if Jacobs is found responsible under the law for any of the allegations contained in Branded Online’s Complaint, then then Rose’s conduct actively contributed to the acts alleged in Plaintiff’s Complaint and that Rose should be held liable to Branded for the damages. (FACC ¶ 44.)

Cross-Defendants contend that Cross-Complainant does not plead the existence of any express indemnity language in a contract with Rose. (Dem. 7.) Cross-Defendants further contend that the allegations of the fourth cause of action comprise “nothing more than vague allegations and conclusions that do not support equitable considerations brought into play by contractual language not specifically dealing with indemnification” or otherwise support an indemnity claim. (Dem. 8.)

At this stage of the proceedings, the FACC need only plead ultimate facts to support Jacobs’ claim for equitable indemnification. (Doe, supra, 42 Cal.4th at p. 550.) Cross-Complainant alleges that Rose engaged in fraudulent conduct that included creating FTP TJ under false pretenses, and signing the Agreement for purposes of obtaining a job with Branded Online. (FACC ¶¶ 4-5, 19-23.) These allegations are sufficient for Cross-Complainant to state the fourth cause of action for indemnity based on the equities of the case. (See Bay, supra, 50 Cal.3d at p. 1029.)

Cross-Defendants further contend that the fourth cause of action is barred by the applicable statute of limitations. Cross-Defendants cite Sunset-Sternau Food Co. v. Bonzi (1964) 60 Cal.2d 834 (Sunset-Sternau) to argue that a two-year statute of limitation applies to an oral indemnity agreement under Code of Civil Procedure, section 339, subdivision (1). (Dem. 9.) First, Cross-Defendants’ argument fails because the fourth cause of action is based on the equities of the case and not an express or implied contractual indemnity agreement. Second, the argument fails because a cause of action for equitable indemnity is a separate and distinct cause of action from an injured party’s claim. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 285.) The statute of limitations on a cause of action for equitable indemnity generally does not accrue until the tort defendant pays a judgment or settlement as to which she is entitled to indemnity. (Ibid.) Jacobs has not yet been found liable or paid a judgment or settlement. Accordingly, the statute of limitations has not yet accrued and does not bar the fourth cause of action on the face of the FACC.

For these reasons, the court OVERRULES the demurrer to the fourth cause of action.
D. Fifth Cause of Action for Conspiracy to Defraud

“Although conspiracy to commit a tort is not a separate cause of action from the tort itself, alleging a conspiracy fastens liability on those who agree to the plan to commit the wrong as well as those who actually carry it out. [Citation.] The elements of a civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act done in furtherance of the common design. [Citation.]” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 323 (Stueve Bros.), quoting Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 845-846.) “The major significance of a conspiracy cause of action lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong … regardless of the degree of his activity. The essence of the claim is that it is merely a mechanism for imposing vicarious liability; it is not itself a substantive basis for liability. Each member of the conspiracy becomes liable for all acts done by others pursuant to the conspiracy, and for all damages caused thereby.” (Stueve Bros, id. at pp. 323-324, internal quotation marks and citations omitted.)

First, Cross-Defendants contend that the FACC fails to plead cooperation, aid and encouragement, or ratification and adoption of the acts of the Cross-Defendants by other Cross-Defendants who may have participated in the conspiracy subsequent to its formation and operation. (Dem. 10, citing Orser v. George (1967) 252 Cal.App.2d 660, 667 (Orser).) Orser involved claims under the “concert of action” doctrine and not conspiracy. (Orser, 252 Cal.App.2d at pp. 663-664, 666-669.) Although the two doctrines both involve joint liability for the tortious conduct of an individual, they are distinct doctrines with separate pleading standards. Furthermore, Orser arose on appeal from a grant of summary judgment and did not arise at the pleading stage; thus, Orser is inapposite to the demurrer at hand. (Id. at pp. 664, 668.) Cross-Defendants fail to demonstrate that the fifth cause of action is defective on the face of the pleading on this basis.

Moreover, Jacobs alleges that Cross-Defendant Rose made misrepresentations to Jacobs in September 2014 (FACC ¶ 19), that Rose was secretly acting as an agent on behalf of Branded Online at the time the allegations were made (id. at ¶ 23), that Rose subsequently entered the employment of Branded Online (id. at ¶ 23) and that Rose continued to act as Branded Online’s agent in December 2017 when Plaintiff filed suit against her through its Complaint (id. at ¶ 25). Jacobs further alleges that Branded Online is currently holding over $60,000 from the sales of Jacobs designed clothes. (Id. at ¶¶ 17.) Viewed liberally and in context, these allegations are sufficient for Jacobs to plead that Rose and Branded Online formed and operated a conspiracy to defraud Jacobs which resulted in Cross-Complainant’s alleged harm. For purposes of the subject demurrer, these allegations are sufficient to state a cause of action for conspiracy to commit fraud.

Second, Cross-Defendants cite Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 136-137 (Bedolla) to contend that a cause of action for conspiracy must allege when the last overt act in pursuance of the conspiracy took place. (Dem. 10.) Bedolla arose on appeal of a judgment and did not involve consideration of the pleading standards required for a plaintiff or cross-complainant to survive demurrer. (See Bedolla, 52 Cal.App.3d at pp. 136-138 [affirming a trial court’s grant of summary judgment after finding that the applicable statute of limitations had run based on the last overt act alleged].) Cross-Defendants thus fail to demonstrate that the FACC is defective on the face of the pleading for a failure to allege the last overt act of the alleged conspiracy.

Third, Cross-Defendants further argue that the fifth cause of action is barred by the applicable statute of limitations of the underlying cause of action for fraud. Cross-Defendants’ argument fails for the same reasons identified above with respect to the statute of limitations for the first cause of action.

The court therefore OVERRULES the demurrer to the fifth cause of action.

III. Conclusion

For these reasons, the court SUSTAINS the demurrer to the first cause of action as to Cross-Defendant Branded Online with 20 days leave to amend. The demurrer is otherwise OVERRULED.
MOTION TO STRIKE
I. Legal Standard

Pursuant to Code of Civil Procedure, section 436, the court may: “(a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Id., § 437, subd. (a).) A notice of motion to strike a portion of the pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, or defense. (Cal. Rules of Court, rule 3.1322.)
II. Analysis

“To support punitive damages, the complaint . . . must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294 subd. (c)(2).) “ ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Cross-Defendants contend that Jacobs fails to allege sufficient fact to establish the “despicable conduct” necessary to allow a finding of malice, oppression or fraud sufficient support an award of punitive damages. The court notes that Cross-Complainant does not specifically address Cross-Defendants’ arguments in its combined opposition to the demurrer and motion to strike. Nevertheless, as the court has overruled the demurrer as to the first cause of action with respect to Rose and overruled the fifth cause of action for conspiracy to defraud, the court finds that FACC has alleged sufficient facts of fraud and conspiracy to engage in fraud to state a claim for punitive damages. The court therefore DENIES the motion.[4]

[1] Cross-Complainant submits the Declaration of Michael H. Bassiri (“Bassiri Declaration”) in support of the subject demurrer and motion to strike. Bassiri attests that he met and conferred with counsel for Cross-Defendants in writing, at least five days before filing the demurrer and motion, but that the parties were unable to come to an agreement. (Bassiri Decl. ¶ 3.) A meet and confer under section 430.41 and 435.5 must be in person or by telephone. (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) Nevertheless, as the parties appear to have fully briefed the issues, the court will consider the demurrer and motion on their merits.

[2] Having sustained the demurrer to the first cause of action against Cross-Defendant Branded Online, the court need not address the sufficiency of Cross-Complainant’s allegations against this Cross-Defendant.

[3] Cross-Defendants argue that the Jacobs cannot allege that Rose breached his fiduciary duty as the COO of FTP TJ because Jacobs also alleges that the limited liability does not exist. (Reply 7.) The FACC alleges that Rose led Jacobs to believe that he had established FTP TJ with her and Rose as members and with Rose as its COO, and that he subsequently entered into the Agreement on FTP TJ’s behalf as its COO. (FACC ¶¶ 4-5.) These allegations are sufficient for Cross-Complainant to plead the existence of a fiduciary duty under the common law—regardless of the validity of FTP TJ as a legal entity. (See Hasso, supra, 227 Cal.App.4th at p. 140.)

[4] Having sustained the demurrer to the first cause of action as to Cross-Defendant Branded Online, the court notes that the motion is MOOT as to this Cross-Defendant’s request to strike the punitive damages with respect to the first cause of action.