Case Number: 19PSCV00186 Hearing Date: December 17, 2019 Dept: J

HEARING DATE: Tuesday, December 17, 2019

NOTICE: Motions #1-#8: OK[1]

RE: Fallas, et al. v. Juneja, et al. (19PSCV00186)

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1. Defendant Gurbachan S. Juneja’s DEMURRER TO THE FIRST AMENDED

COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

2. Defendant Gurbachan S. Juneja’s MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

3. Defendant TJ Gurdeep Juneja fka Tinku Juneja’s DEMURRER TO THE FIRST AMENDED COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

4. Defendant TJ Gurdeep Juneja fka Tinku Juneja’s MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

5. Defendant White Avenue Plaza, LLC’s DEMURRER TO THE FIRST AMENDED COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

6. Defendant White Avenue Plaza, LLC’s MOTION TO STRIKE PORTIONS OF

THE FIRST AMENDED COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

7. Defendant Silverback Management Group, Inc.’s DEMURRER TO THE FIRST AMENDED COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

8. Defendant Silverback Management Group, Inc.’s MOTION TO STRIKE PORTIONS OF COMPLAINT

Responding Party: Plaintiffs, Jose Douglas Fallas and GGSP, LLC

Tentative Ruling

1. Defendant Gurbachan S. Juneja’s Demurrer to the First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

2. Defendant Gurbachan S. Juneja’s Motion to Strike Portions of the First Amended Complaint is DENIED as MOOT.

3. Defendant TJ Gurdeep Juneja fka Tinku Juneja’s Demurrer to the First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

4. Defendant TJ Gurdeep Juneja fka Tinku Juneja’s Motion to Strike Portions of the First Amended Complaint is DENIED as MOOT.

5. Defendant White Avenue Plaza, LLC’s Demurrer to the First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

6. Defendant White Avenue Plaza, LLC’s Motion to Strike Portions of the First Amended Complaint is DENIED as MOOT.

7. Defendant Silverback Management Group, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

8. Defendant Silverback Management Group, Inc.’s Motion to Strike Portions of the First Amended Complaint is DENIED as MOOT.

Background

Plaintiffs Jose Douglas Fallas and GGSP, LLC (“Plaintiffs”) allege that, in or about January 2018, defendants became aware that Plaintiffs’ property located at 2380 and 2408 N. Garey Avenue, Pomona, California, 91767 (“subject property”) was noticed for, and subject to, a writ of execution sale (“Sale”) by the Los Angeles County Sheriff’s Office pursuant to a notice of levy under writ of execution as a result of a $714,063.46 civil judgment (“Judgment”) against Plaintiffs. During this time, defendants approached Plaintiffs with a proposed “Joint Venture Agreement” involving the subject property, wherein Plaintiffs would sell the subject property to defendants at a drastically reduced price from the subject property’s fair market value in exchange for a share of the profits from the parties’ proposed joint venture. As part of the Joint Venture Agreement, the judgment against Plaintiffs would be satisfied. Plaintiffs allege that the eventually decided against the proposed joint venture and instead, in November 2018, entered into a verbal agreement (“Agreement”) with defendants, in which defendants agreed to provide Plaintiffs with the necessary and timely financing for Plaintiffs to payoff and satisfy the Judgment in order to avoid the Sale, scheduled for January 9, 2019. Plaintiffs allege that defendants instead covertly attended the writ of execution auction on January 9, 2019 and purchased the subject property.

On September 19, 2019, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants TJ Gurdeep Juneja, Gurbachan S. Juneja, Tinku Juneja, White Avenue Plaza, LLC (“White Avenue”), Silverback Management Group, Inc. and Does 1-10 for:

Breach of Contract

Fraud

Financial Elder Abuse

A Case Management Conference is set for February 14, 2019.

1. Defendant Gurbachan S. Juneja’s Demurrer

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Discussion

G. Juneja demurs, per CCP § 430.10(e), to the first through third causes of action in Plaintiffs’ FAC, on the basis that they each fail to state facts sufficient to constitute causes of action.

First Cause of Action (i.e., for Breach of Contract)

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

“Contract formation is governed by objective manifestations, not subjective intent of any individual involved. The test is what the outward manifestations of consent would lead a reasonable person to believe.” (Roth v. Malson (1998) 67 Cal.App.4th 552, 557 [internal quotations and citation omitted].) “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” (City of Moorpark v. Moorpark United School Dist. (1991) 54 Cal.3d 921, 930 [internal quotations and citation omitted].) “Under basic contract law, an offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770 [internal quotations and citation omitted].)

Plaintiffs have alleged that “in November 2018, [Plaintiffs] entered into a verbal agreement (‘Financing Agreement’ or ‘Agreement’) with the Defendants, pursuant to which the Defendants promised and agreed to provide Plaintiffs with the necessary and timely financing for Plaintiffs to payoff and satisfy the Judgment in order to avoid the writ of execution Sale that was noticed and scheduled by the judgment creditor for January 9, 2019,” that the Financing Agreement “called for: (1) Defendants to loan Plaintiff One Million Dollars ($1,000,000), and at the very least enough to satisfy the $714,063.46 Judgment (‘Loan’), (2) at an interest rate of Eleven Percent (11%); (3) prior to the Sale on January 9, 2019; in exchange for (4) Plaintiff fully executing any and all necessary loan documents for Defendant; (5) including a Promissory Note wherein Plaintiff would promise and be bound and obligated to repay the Loan; and (6) including a Deed of Trust securing said Loan with Plaintiff’s Subject Property for the benefit of Defendants.” (FAC, ¶16.) Plaintiffs have further alleged that they “performed their duties and satisfied their obligations under the Parties’ Financing Agreement by providing Defendants with the necessary information pertaining to: (1) Plaintiffs’ financial wherewithal; (2) the Subject Property; (3) the Judgment; and (4) the writ of execution Sale” and that “Defendants breached the Agreement by failing to provide Plaintiffs with the necessary and timely financing. . .” (Id., ¶¶17 and 30.)

The foregoing allegations suggest that the parties has discussions regarding a possible written loan agreement, which would have included a promissory note and deed of trust. “[N]either law nor equity provides a remedy for breach of an agreement to agree in the future. Such a contract cannot be made the basis of a cause of action. The court may not imply what the parties will agree upon.” (Autry v. Republic Productions (1947) 30 Cal.2d 144, 151-152 [citations omitted].) Here, Plaintiffs concede that the loan amount was not determined.

Additionally, inasmuch as the purported agreement pertained to real estate financing, it would appear that the statute of frauds (Civil Code § 1624) would apply. Although Plaintiffs raise promissory estoppel in their opposition, Plaintiffs have not pled same in their FAC.

G. Juneja’s demurrer to the first cause of action, then, is SUSTAINED.

Second Cause of Action (i.e., for Fraud)

“The essential allegations of an action for fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage.” (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.)

“Fraud must be pleaded with specificity…[t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782 [emphasis in original].) “This particularity requirement necessitates pleading facts which how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [internal quotations and citation omitted; emphasis in original].)

Plaintiffs have alleged, in relevant part, that “[f]rom November and December 2018, all the way up to the final days before the herein described Sale on January 9, 2019, including but not limited to on the specific dates of Sunday, January 6, 2019, Monday, January 7, 2019, and Tuesday, January 8, 2019, Defendants continued to promise, reassure and make false statements: (1) directly to Plaintiff Jose Douglas Fallas, as an individual and as an agent of Plaintiff GGSP, LLC; (2) directly to Plaintiffs’ real estate broker Yolanda Andrade; and (3) even directly to Plaintiffs’ undersigned attorney or record, verbally over the phone and in writing via text messages and emails, that Defendants were going to provide Plaintiffs with the necessary Loan in time for Plaintiffs to satisfy the herein described Judgment and thereby stop the execution Sale.” (FAC, ¶23.)

Although Plaintiffs identify that on January 7, 2019, T. Juneja “made false misrepresentations to Plaintiffs real estate broker and attorney of record that not only were Defendants going to provide Plaintiffs with financing in time to prevent the Sale but that Defendants could provide the judgment creditor with the necessary proof of Plaintiffs’ financing/qualification as long as the judgment creditor would provide Defendants with a current demand for payoff” (Id., ¶20), Plaintiffs do not identify how, where, and by what means this alleged misrepresentation was tendered. Plaintiffs, moreover, do not provide any facts in relation to the other purported misrepresentations set forth in ¶23. Plaintiffs have not factually pled the remaining elements.

G. Juneja’s demurrer to the second cause of action is SUSTAINED.

Third Cause of Action (Financial Elder Abuse)

Welfare and Institutions Code § 15610.30(a) provides, in relevant part, that “[f]inancial abuse” of an elder or dependent adult occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retails real or personal property or an elder or dependent adult for a wrongful use or with intent to defraud, or both” or assists in same.

Plaintiffs have failed to allege how defendants defrauded Plaintiffs out of the subject property. G. Juneja’s demurrer to the third cause of action is SUSTAINED.

2. Defendant Gurbachan S. Juneja’s Motion to Strike

G. Juneja’s motion to strike is summarily DENIED as MOOT, based upon the ruling made on the demurrer.

3. Defendant TJ Gurdeep Juneja fka Tinku Juneja’s Demurrer

The court notes that TJ Gurdeep Juneja fka Tinku Juneja’s (“T. Juneja”) demurrer appears identical to G. Juneja’s demurrer; accordingly, the court incorporates the analysis on G. Juneja’s demurrer set forth above herein. T. Juneja’s demurrer is SUSTAINED on this basis.

4. Defendant TJ Gurdeep Juneja fka Tinku Juneja’s Motion to Strike

T. Juneja’s motion to strike is summarily DENIED as MOOT, based upon the ruling made on the demurrer.

5. Defendant White Avenue Plaza, LLC’s Demurrer

The court notes that White Avenue’s demurrer appears virtually identical to G. Juneja’s demurrer; accordingly, the court incorporates the analysis on G. Juneja’s demurrer set forth above herein. White Avenue’s demurrer is SUSTAINED on this basis.

6. Defendant White Avenue Plaza, LLC’s Motion to Strike

White Avenue’s motion to strike is summarily DENIED as MOOT, based upon the ruling made on the demurrer.

7. Defendant Silverback Management Group, Inc.’s Demurrer

The court notes that Silverback’s demurrer appears identical to G. Juneja’s demurrer; accordingly, the court incorporates the analysis on G. Juneja’s demurrer set forth above herein. Silverback’s demurrer is SUSTAINED on this basis.

8. Defendant Silverback Management Group, Inc.’s Motion to Strike

Silverback’s motion to strike is summarily DENIED as MOOT, based upon the ruling made on the demurrer.

[1] All of the motions were filed and mail-served on October 11, 2019; Motions #7 and #8 were originally set for hearing on November 6, 2019, Motions #5 and #6 were originally set for hearing on November 13, 2019, and Motions #1 through #4 were originally set for hearing on November 20, 2019. On October 23, 2019, the court rescheduled the aforesaid hearing dates to December 17, 2019. On October 25, 2019, moving parties filed and mail-served a “Notice of Continuance of Defendants[‘] Motions to Strike and Demurrers.”