LINE: 7 19-CIV-04266 MAXIMO INVESTMENTS LLC VS. CLAUDIA TRUESDELL, ET AL.

MAXIMO INVESTMENTS LLC CLAUDIA TRUESDELL
MARK J. ROMEO KEVIN R. BRODEHL

DEFENDANTS WORKING DIRT R2, LLC’S, WORKING DIRT, LLC’S, CLAUDIA TRUESDELL’S, ABRAHAM FARAG’S, AMY MILLER’S, BRENDA DAVIS, AND WHITNEY BALLESTRAZZE’S DEMURRER TO PLAINTIFF MAXIMO INVESTMENTS TENTATIVE RULING:

Defendants request for judicial notice is GRANTED as to the existence of the documents, but not for their truth.

Demurrer to the fifth cause of action (interference with contract) is OVERRULED. The demurrer fails to show that no contract existed. The argument that Plaintiff’s partnership with WORKING DIRT already “fell apart” and “already collapsed” before Defendants became involved does not negate the existence of a contract. The demurrer also fails to show that no interference occurred. Defendants argue that the Complaint fails to allege that Defendants committed acts to induce WORKING DIRT to breach their contracts. The tort of interference with contract, however, does not require an induced breach; it may be based on “making performance more expensive or difficult.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126; CACI 2201.)

Demurrer to the fourth cause of action is OVERRULED. The Court agrees with Defendants that a defendant cannot conspire to commit a tort that the defendant is not “legally capable” of committing the tort. (Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.) Plaintiff concedes that Defendants cannot conspire to breach a fiduciary duty, since none of them is a fiduciary to Plaintiff. However, the allegations are sufficient to allege a claim that Defendants aided and abetted in a breach of fiduciary duty. Defendants note that the words “aiding and abetting” do not appear in the fourth cause of action, which is true but paragraphs 62-64 describe aiding and abetting, even though Plaintiff titles the cause of action as conspiracy. Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 343–344. The title of the cause of action is not controlling. Since the fourth cause of action alleges aiding and abetting a breach of fiduciary duty, it states a cause of action. Since, the fourth cause of action states facts to support a secondary liability claim based upon breach of fiduciary duty, the Court does not reach the allegations regarding conspiracy to commit fraud. Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.

Since the Court has tentatively sustained with leave to amend other defendants’ demurrer, Defendants Consuelo Cervantes, LLC, Jaime Gonzalez, Cal West Home Loans, Inc., and Michael Bruno shall file their response to the amended complaint within the statutory time after Plaintiffs amend their complaint or the time for amendment has passed. Defendants shall comply with Code of Civil Procedure § 430.41(b).

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

LINE: 8 19-CIV-04266 MAXIMO INVESTMENTS LLC VS. CLAUDIA TRUESDELL, ET AL.

MAXIMO INVESTMENTS LLC CLAUDIA TRUESDELL
MARK J. ROMEO KEVIN R. BRODEHL

DEFENDANTS CONSUELO CERVANTES LLC’S, JAIME GONZALEZ’S, CAL WEST HOME LOANS, INC. AND MICHAEL BRUNO’S DEMURRER TO PLAINTIFF MAXIMO INVESTMENTS, LLC’S 8-7-19 SECOND AMENDED COMPLAINT TENTATIVE RULING:

Defendant WORKING DIRT’s demurrer to the complaint in its entirety is OVERRULED. Defendant contends that the Complaint contains no charging allegations against WORKING DIRT. The Complaint names WORKING DIRT in the cause of action for civil conspiracy. (SAC para. 62.) The demurrer to the entire complaint is on the ground that the Complaint fails to plead “any” cause of action against WORKING DIRT. (Notice of Demurrer at 1:17). Since the Complaint alleges at least one cause of action, the demurrer to the complaint in its entirety is overruled.

The demurrer by Defendants DAVIS, MILLER, and BALLESTRAZZE to the second cause of action (breach of fiduciary duty) is SUSTAINED WITH LEAVE TO AMEND. The Complaint does not contain sufficient allegations supporting the finding of a fiduciary or confidential relationship. The Complaint alleges that these Defendants were “decision makers” of WORKING DIRT, but Plaintiff cites no authority for equating decision-making members of an LLC to be in a confidential relationship (trust and repose) with the LLC’s partner.

The demurrer by Defendants DAVIS, MILLER, and BALLESTRAZZE to the third cause of action (concealment) is SUSTAINED WITH LEAVE TO AMEND. Generally, a claim for concealment does not lie unless the defendant owed a duty to disclose, such as in a fiduciary or confidential relationship. The Complaint alleges no such relationship. Plaintiff correctly notes that a duty to disclose may exist in the absence of a fiduciary or confidential duty. Plaintiffs though fail to allege sufficient facts as to each defendant to demonstrate that they can be liable for fraud under one of the exceptions to the general rule. While Defendants may have knowledge of the facts, the Second Amended Complaint is not specific enough as to the acts of each defendant. The Court does not consider Defendants’ late argument that no duty exists to disclose intended tortious activity (Reply at 5-:20 – 6:1) because the Noticed ground for demurrer was the lack of specificity only. (Mov. P&A at 6.) Raising new argument in a reply brief denies the opposing party an opportunity to respond.

Plaintiff is granted leave of court to file and serve a Third Amended Complaint addressing the above deficiencies of the second and third causes of action, no later than February 26, 2020, or two weeks after service of written notice of ruling, whichever date is later.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.