Case Name: Chandramohan V. Ammini, et al. v. Dana Ichinotsubo, et al.
Case No.: 2010-1-CV-167069

Currently before the Court is the motion by defendant Dory Ichinotsubo (“Dory”) for summary judgment of the third amended complaint (“TAC”) or, alternatively, summary adjudication of the eighth, eleventh, thirteenth, seventh, eighteenth, and nineteenth causes of action.

Factual and Procedural Background

Plaintiffs are former employees of defendant Antara Biosciences, Inc. (“Antara”). On March 22, 2010, Plaintiffs filed a complaint against Antara and defendant Dana Ichinotsubo (“Dana”), alleging claims for: (1) fraud (only against Dana); (2) nonpayment of wages in violation of Labor Code section 218; (3) nonpayment of wages upon termination in violation of Labor Code sections 201-203; (4) nonpayment of vested paid time off upon termination in violation of Labor Code section 227.3; (5) breach of written contract; (6) breach of written contract; and (7) unfair business practices.

The initial complaint alleged that Dana and Antara’s CEO, defendant Marc R. Labgold (“Labgold”), told Plaintiffs that Dana had raised $100 million in capital, an amount that would finance Antara’s operation for three to four years. (Complaint, ¶ 34.) In actuality, “Antara never received anywhere near the $100 million in capital ….” (Id. at ¶ 35.) Only Dana and his sister, Dory, knew Antara’s true financial situation. (Id. at ¶¶ 25 and 36.) The complaint also alleges that many of the Plaintiffs advanced Antara money and used their own money to cover Antara’s day-to-day expenses, in reliance on Dana’s promises of reimbursement. (Id. at ¶¶ 38-41.) In April 2007, Dana and Labgold told the employees that Antara would not be able to pay its employees starting with the pay period ending April 15, 2007; however, Antara would imminently receive funds from four Japanese bearer bonds from a Japanese entity known as Eurus. (Id. at ¶¶ 42-43.) Dana provided these bonds to Labgold, who passed these bonds around for personal inspection at the meeting of the company officers, and Labgold then explained the procedure through which proceeds from these bonds would become available to Antara. (Id. at ¶ 44.) Dana and Labgold made assurances that the proceeds from these bonds would be transferred into Antara’s account and used to meet payroll and to compensate the employees for unreimbursed expenditures and company advances, and that it “was just a matter of time and going through the due process” for the bonds to mature and be redeemed. (Ibid.)

However, during the next two months, employee payroll and most vendor accounts went unpaid and Antara was forced out of its Mountain View facility and laid off all of its employees. (Complaint, ¶¶ 45-46.) Once it became clear that Antara would not be able to restart operations, Dana and Labgold informed Plaintiffs via an August 28, 2007 email that Antara was in active discussions to sell its intellectual property assets to an entity called “MBH” and that any monies raised by that sale would be used to reimburse Plaintiffs for their unpaid wages, PTO, monetary advances and reimbursements, but cautioned that the sale to MBH would be jeopardized if there were any pending litigation involving Antara, such as if Plaintiffs sued the Company for unpaid wages, or if the employee demands for unpaid wages forced Antara to declare bankruptcy. (Id. at ¶¶ 49-50.) Labgold sent further emails to Plaintiffs in September 2007. (Id. at ¶ 50.) In November 2007, Dana paid Plaintiffs for the pay period of April 1 to April 14, 2007, and some small reimbursements; however, Dana did not make any further payments to Plaintiffs. (Id. at ¶ 54.) The complaint additionally alleges that Dana alone was the alter ego of Antara, despite noting that both Dana and Labgold had total control over the employment policies and recruiting for Antara. (Id. at ¶ 25.)

Dana and Antara filed a joint answer to the complaint on May 14, 2010.

On June 10, 2010, former counsel for Dana and Antara filed a notice of stay of proceedings, advising the court and all parties that the case was automatically stayed “[w]ith regard to all parties” as a result of a filing in another court. Attached to the notice of stay of proceedings was a notice of bankruptcy case filing, which stated that Antara filed for chapter 7 bankruptcy in the United States Bankruptcy Court, Central District of California, on June 9, 2010.

Thereafter, all case management and case status conferences set in this action were vacated or continued by the court (Hon. Elizabeth Strickland and Hon. Mark H. Pierce). The court’s electronic case management system does not reflect the reason for the repeated continuances other than to note that a notice of bankruptcy had been filed as to Antara.

On February 8, 2012, Plaintiffs filed a substitution of attorney and Plaintiffs’ current counsel took over their representation.

Approximately two months later, Plaintiffs filed a motion for leave to amend their complaint to add Labgold as a defendant and include certain new allegations, including new allegations that both Dana and Labgold were the alter egos of Antara. The motion was set to be heard on May 10, 2012. While the motion was pending, the court (Hon. Mark H. Pierce) continued a case status conference set for April 19, 2012, noting the pending bankruptcy. On May 10, 2012, the hearing on Plaintiffs’ motion for leave to amend the complaint was continued to June 7, 2012. After Plaintiffs dismissed Antara as a defendant on June 6, 2012, the court (Hon. Mark H. Pierce) granted Plaintiffs’ motion for leave to amend.

The first amended complaint (“FAC”) was filed on June 7, 2012. In the FAC, Plaintiffs allege causes of action against Dana and Labgold for: (1) fraud; (2) nonpayment of wages in violation of Labor Code section 218 (only against Dana); (3) nonpayment of wages upon termination in violation of Labor Code sections 201-203 (only against Dana); (4) nonpayment of vested paid time off upon termination in violation of Labor Code section 227.3 (only against Dana); (5) breach of written contract; (6) breach of written contract; (7) breach of promissory note; and (8) unfair business practices.

Pursuant to a stipulation and order, Plaintiffs filed a second amended complaint (“SAC”) against Dana and Labgold on September 6, 2012. In the SAC, Plaintiffs alleged that they “purchased the interests of the Antara Bankruptcy Estate ‘in and to all claims or causes of action’ against ‘[Labgold] and/or [Dana]’ ” on March 29, 2012. (SAC, ¶ 63.) They further alleged that the bankruptcy court issued an order approving the asset purchase on May 7, 2012. (Ibid.) Based on these new allegations, Plaintiffs alleged the following six additional causes of action based on wrongs done to and injuries sustained by Antara: (9) breach of fiduciary duty; (10) corporate waste; (11) unjust enrichment; (12) conversion/embezzlement; (13) abuse of control; (14) gross mismanagement; and (15) fraudulent transfer.

On August 28, 2013, Plaintiffs’ counsel filed a notice of stay of proceedings, advising the court and all parties that the case was automatically stayed with regard to Labgold as a result of a filing in another court. Attached to the notice of stay of proceedings was Labgold’s voluntary petition for chapter 7 bankruptcy, filed July 23, 2013, in the United States Bankruptcy Court, Eastern District of Virginia.

On March 4, 2014, Plaintiffs filed a motion for leave to the TAC. Plaintiffs sought to allege additional causes of action against Dana and add several new defendants, including Dory. In their motion, Plaintiffs advised the court that they recently discovered their additional claims during the course of discovery. They also acknowledged that the case was stayed as to Labgold, and further stated that the case, as a whole, was effectively stayed by Labgold’s bankruptcy proceeding. The court (Hon. Mary E. Arand) granted Plaintiffs’ motion on April 28, 2014.

A few days later, on May 2, 2014, Plaintiffs filed their TAC against numerous defendants, including Dana, Dory, and Labgold. In the TAC, Plaintiffs alleged that the recently purchased Antara’s potential claims against additional individuals, including Dory. (TAC, ¶¶ 71-72.) The TAC alleges claims for: (1) fraud (only against Labgold and Dana); (2) nonpayment of wages in violation of Labor Code section 218 (only against Dana); (3) nonpayment of wages upon termination in violation of Labor Code sections 201-203 (only against Dana); (4) nonpayment of vested paid time off upon termination in violation of Labor Code section 227.3 (only against Dana); (5) breach of written contract (only against Labgold and Dana); (6) breach of written contract (only against Labgold and Dana); (7) breach of promissory note (only against Labgold and Dana); (8) unfair business practices; (9) breach of fiduciary duty (only against Labgold and Dana); (10) corporate waste (only against Labgold and Dana); (11) unjust enrichment; (12) conversion/embezzlement (only against Labgold and Dana); (13) conversion (against all defendants except Labgold); (14) abuse of control (only against Labgold and Dana); (15) gross mismanagement (only against Labgold and Dana); (16) fraudulent transfer (against all defendants except Labgold); (17) violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, subdivision (c) (against all defendants except Labgold); (18) violations of RICO, 18 U.S.C. § 1962, subdivision (d) (against all defendants except Labgold); and (19) accounting (against all defendants except Labgold). The newly added causes of action are based on wrongs done to and injuries suffered by Antara.

Subsequently, Dory filed an answer to the TAC on March 13, 2015.

Thereafter, on December 1, 2015, Plaintiffs filed a notice of termination of stay regarding Labgold’s bankruptcy stay.

Approximately one month later, on January 13, 2016, Labgold filed a notice of removal of the case to federal court. The case was remanded to this Court on June 24, 2016. On June 30, 2016, Plaintiffs dismissed the lawsuit against Labgold.

At the August 22, 2017 trial setting conference, the Court set the matter for a 12-day trial beginning on February 20, 2018.

A few weeks later, the Ichinotsubos filed a motion to dismiss the lawsuit for failure to bring the case to trial within five years. On October 10, 2017, the Court issued its order on the Ichinotsubos’ motion to dismiss. The Court denied the motion with respect to Dory. The motion as to Dana was denied with respect to the ninth through nineteenth causes of action and granted with respect to the first through eighth causes of action.

On November 3, 2017, Dory filed the instant motion for summary judgment of the TAC or, in the alternative, summary adjudication of the eighth, eleventh, thirteenth, seventeenth, eighteenth, and nineteenth causes of action. Plaintiffs filed papers in opposition to Dory’s motion on January 4, 2018. On January 12, 2018, Dory filed a reply.

Discussion

Pursuant to Code of Civil Procedure section 437c, Dory moves for summary judgment of the TAC or, alternatively, summary adjudication of the eighth, eleventh, thirteenth, seventeenth, eighteenth, and nineteenth causes of action as alleged by Ammini, Brashers, Jokhadaze, Ogi, and Young. (Mem. Ps. & As., p. 1:2-6.)

I. Requests for Judicial Notice

A. Dory’s Request

Dory asks the Court to take judicial notice of (1) documents filed in this case and (2) orders approving asset purchase agreements filed in Antara’s bankruptcy case, In re Antara Bioscience, Inc. (States Bankruptcy Court for the Central District of California, Case No. 1L10-bk-16923-VK).

Court records are generally proper subjects of judicial notice under Evidence Code section 452, subdivision (d). Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455 (Woodell).)

Consequently, Dory’s request for judicial notice is GRANTED.

B. Plaintiffs’ Request

Plaintiffs ask the Court to take judicial notice of (1) documents filed in this case, (2) documents filed in Antara’s bankruptcy case, and (3) a Statement of Information filed by Antara with the California Secretary of State on March 2, 2009.

First, court records are generally proper subjects of judicial notice under Evidence Code section 452, subdivision (d). Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (Woodell, supra, 17 Cal.4th at p. 455.) Consequently, the court records filed in this action and Antara’s bankruptcy case are proper subjects of judicial notice.

Second, the Statement of Information filed with the California Secretary of State is a proper subject of judicial notice pursuant to Evidence Code section 452, subdivision (c), which provides that official acts of the executive departments of states may be judicially noticed. (See Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156 [granting request for judicial notice of the official records of the California Secretary of State]; see also Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1484 [same].)

Therefore, Plaintiffs’ request for judicial notice is GRANTED.

II. Evidentiary Objections

In connection with her reply papers, Dory submits objections to some of the evidence offered by Plaintiffs in support of their opposition.

The Court declines to rule on Dory’s evidentiary objections because they are not material to the disposition of the motion. (See Code Civ. Proc., §437c, subd. (q) [“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”].)

III. Legal Standard

The pleadings limit the issues presented for summary judgment or summary adjudication, and such a motion cannot be granted or denied on issues not raised by the pleadings. (Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) A defendant seeking summary judgment or summary adjudication “must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).) “ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted; see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; see also Intrieri v. Super. Ct. (2004) 117 Cal.App.4th 72, 82.)

The tried and true way for defendants to meet their burden of proof is to present affirmative evidence negating, as a matter of law, an essential element of the plaintiff’s claim. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334, fn. 7 [under California’s traditional rules, courts must determine with respect to each cause of action whether the defendant seeking summary judgment has presented affirmative evidence conclusively negating a necessary element of the plaintiff’s case]; see also Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597 [a cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law].)

The defendant may also demonstrate that an essential element of the plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar); see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), p. 10-104, ¶ 10:242, [“Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.”].)

The final way in which defendants can satisfy their initial burden of proof is to show a complete defense to the plaintiff’s cause of action. (See Aguilar, supra, 25 Cal.4th at p. 849.) For example, defendants can present declarations or other admissible evidence showing that the plaintiff’s claim has been released or is time-barred by the statute of limitations. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), p. 10-105, ¶ 10:246.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (See Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) The motion may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co. (Hepp) (1978) 86 Cal.App.3d 714, 717-718 (Hepp).) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp, supra, 86 Cal.App.3d at p. 717.)

IV. Eleventh Cause of Action

In the eleventh cause of action for unjust enrichment, Plaintiffs incorporate all preceding allegations in the TAC. (TAC, ¶ 133.) Plaintiffs state that, “[a]s a result of their wrongful conduct, [the] [d]efendants have been unjustly enriched at the expense of Antara and Plaintiffs, in the form of unjustified payments and transfers of corporate assets and are thereby required to make restitution.” (Id. at ¶ 134.) Plaintiffs allege that they are entitled to “disgorgement by [the] [d]efendants of all monies, assets and benefits obtained directly or indirectly through their wrongful conduct ….” (Id. at ¶ 135.)

As a preliminary matter, Dory argues that the unjust enrichment claim “should be dismissed because unjust enrichment is not a recognized cause of action under California law.” (Mem. Ps. & As., p. 14:13-16.) Although there “is no cause of action in California for unjust enrichment” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793), unjust enrichment is synonymous with restitution (see Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1314) and courts will overlook the label of a cause of action to determine whether a claim warranting restitution has been stated (see McBride v. Houghton (2004) 123 Cal.App.4th 379, 387-388 (McBride)). Notably, there are several potential bases for a cause of action seeking restitution; for example, restitution “may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citation.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or ‘similar conduct’ and the plaintiff elects not to sue in tort but seek restitution on a quasi-contractual theory.” (McBride, supra, 123 Cal.App.4th at p. 388.) Here, Dory makes no attempt to show that Plaintiffs have not stated a claim for restitution. Consequently, Dory’s perfunctory argument fails to dispose of the eleventh cause of action.

Next, Dory argues that the eleventh cause of action is time-barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338, subdivision (d). (Mem. Ps. & As., p. 12:15-19.) She asserts that the statute of limitations expired in July 2013, three years after the Antara bankruptcy proceedings began. (Ibid.) Dory asserts that “Plaintiffs were on inquiry notice that they held … [an] Unjust Enrichment claim[ ] against Dory when Dana allegedly admitted to self-dealing transactions in 2010.” (Id. at pp. 11:4-6 and 17-19.) Dory also cites to testimony that the bankruptcy trustee stated that, in her view, there were probably grounds to sue Dana in July 2010. (Id. at pp. 2:1-12 and 11:24-27.) Dory contends that because Plaintiffs “were on notice of the alleged wrongdoing by two defendants—Dana and Labgold—” in July 2010, the “cause of action and statute of limitations accrued in July of 2010 as to Dory as well.” (Id. at p. 12:10-12.) The only legal authority cited by Dory in support of this contention is Nogart v. Upjohn Co. (1999) 21 Cal. 4th 383 (Upjohn). Dory attributes the following quote to Upjohn: “a plaintiff discovers, or has reason to discover, a cause of action as to all defendants when he at least suspects, or has reason to suspect, a factual basis for its elements as to any defendant.” (Mem. Ps. & As., p. 12:12-14.)

However, Upjohn does not stand for the proposition that “a plaintiff discovers, or has reason to discover, a cause of action as to all defendants when he at least suspects, or has reason to suspect, a factual basis for its elements as to any defendant.” In the quoted portion of Upjohn that Dory relies upon, the California Supreme Court is simply describing the holding of an earlier Court of Appeal case, Bristol-Myers Squibb Co. v. Superior Court (1995) 32 Cal.App.4th 959 (Bristol–Myers Squibb). In Upjohn, the California Supreme Court expressly declined to address the validity of the restrictive Bristol–Myers Squibb formulation of the discovery rule. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 811–812 (Fox).) Moreover, in the later case of Fox, the California Supreme Court rejected the Bristol–Myers Squibb formulation and its bright–line rule of imputed simultaneous discovery of causes of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 812-815 [“We therefore agree with the Court of Appeal below that the Bristol–Myers Squibb formulation is inconsistent with the iteration of the discovery rule announced in this court’s earlier decisions.”].)

Thus, Dory’s sole argument in her moving papers regarding the statute of limitations—that the unjust enrichment cause of action necessarily accrued in July 2010, because Plaintiffs had reason to suspect a factual basis for its elements against Dana and Labgold—lacks merit. A cause of action does not necessarily accrue as to all defendants because a plaintiff has reason to suspect a factual basis for its elements as to any defendant. Rather, under the discovery rule, a cause of action accrues when a plaintiff has reason to suspect a factual basis for its elements. (Fox, supra, 35 Cal.4th at pp. 806-07 and 814.) In her moving papers, Dory does not set forth any other argument showing that Plaintiffs had reason to suspect a factual basis for the elements of their claim for unjust enrichment against Dory in July 2010. Consequently, Dory fails to establish that the unjust enrichment claim alleged against her accrued in July 2010. Because Dory fails to establish the date of accrual, she has not shown that the claim is time-barred by the applicable statute of limitations.

Accordingly, the motion for summary judgment and summary adjudication of the eleventh cause of action is DENIED.

V. Thirteenth Cause of Action

In the thirteenth cause of action for conversion, Plaintiffs allege that the defendants, as officers and directors, “wrongfully exercised dominion over Antara’s assets and funds and intentionally and wrongfully converted, seized and/or diverted Antara’s funds and assets.” (TAC, ¶ 137.) Plaintiffs further allege that “[a]s a direct and proximate result of the [d]efendants’ failure to return these monies and conversion of Antara’s assets and funds, Antara has incurred damages ….” (Id. at ¶ 138.)

Dory asserts that the thirteenth cause of action is time-barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338. (Mem. Ps. & As., p. 12:20-24.) In her moving papers, Dory offers the same statute of limitations argument that she presented with respect to the eleventh cause of action, i.e., that the conversion cause of action necessarily accrued in July 2010, because Plaintiffs had reason to suspect a factual basis for its elements against Dana and Labgold. For the reasons articulated above, Dory’s argument lacks merit. Because Dory fails to establish the date of accrual, she has not shown that the claim is time-barred by the applicable statute of limitations.

Accordingly, the motion for summary adjudication of the thirteenth cause of action is DENIED.

VI. Eighth Cause of Action

In the eighth cause of action for unfair business practices, Plaintiffs allege that the defendants “engaged in unfair business practices in California by utilizing the illegal employment practices outlined above, including but not limited to, failing to pay wages, failing to pay 30-day wage penalties, failure to pay accrued PTO, failure to reimburse employees for covering [c]ompany expenses, and breaching written contracts with Plaintiffs which promised to reimburse them for these monies as well as breaching written contracts with … Brashears, Ogi, and Young for monies advanced to Antara for expenses.” (TAC, ¶¶ 118-119.)

Dory argues that the eighth cause of action is time-barred by the four-year statute of limitations set forth in Business and Professions Code section 17208. (Mem. Ps. & As., p. 13:1-2.)

Dory initially contends that the “unfair business practices cause of action accrued as to [her] no later than March 22, 2010, when Plaintiffs brought this same claim against Dana.” (Mem. Ps. & As., p. 12:26-27.) Dory asserts that “Plaintiffs were aware of [her] involvement in the Unfair Business Practice claim, at the latest when the original [c]omplaint was filed against [Dana] on March 22, 2010 ….” (Id. at p. 11:9-12.)

However, in her moving papers, Dory does not explain why Plaintiffs were aware of her involvement in the unfair business practices claim at the time the complaint was filed against Dana. This conclusory argument fails to demonstrate that the eighth cause of action accrued as to Dory on March 22, 2010. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie); see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaffer) [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Dory also argues that all of the alleged wrongful conduct underlying the claim for unfair business practices—the failure to pay wages and wage penalties, the failure to pay accrued personal time off, the failure to reimburse employees for covering company expenses, and the breach of written contracts with various individual plaintiffs—“necessarily occurred before May 2007, when Antara closed.” (Mem. Ps. & As., p. 13:5-9.) However, Dory fails to demonstrate that the alleged wrongful conduct must have taken place prior to May 2007. Dory’s evidence simply shows that:

By May 30, 2007, Antara was forced out of its Mountain View, California facility. At about the same time, Antara laid off all of its remaining employees. By September 2007, the Antara California bank account was no longer accessible to the Controller (Plaintiff Ogi) or any of the other Plaintiffs, with [Dana] and Labgold controlling all access and all financial transactions of Antara.

(UMF No. 7.)

This evidence does not demonstrate that the defendants were no longer capable of engaging in all of the alleged wrongful conduct that underlies the eighth cause of action. For example, there is no indication that the defendants were incapable of breaching their alleged contracts with various individual plaintiffs after Antara left its Mountain View facility, Antara laid off its employees, and Antara’s bank account was no longer accessible to the Controller. In her moving papers, Dory does not explain what the terms of these alleged contract were, how the terms were allegedly broken, or why the alleged breach must have occurred prior to May 2007. Therefore, Dory’s argument is not well-taken. (See Badie, supra, 67 Cal.App.4th at pp. 784-785; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 ([“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Finally, Dory asserts that “the latest possible day that the cause of action accrued against [Dory] as to unfair business practices would be when the of the same allegations against [Dana] on March 22, 2010” (sic), citing Upjohn for the proposition that “a plaintiff discovers, or has reason to discover, a cause of action as to all defendants when he at least suspects, or has reason to suspect, a factual basis for its elements as to any defendant.” (Mem. Ps. & As., p. 13:8-14.) This conclusory argument lacks merit for the reasons previously stated in connection with the eleventh and thirteenth causes of action.

Because Dory fails to establish the date of accrual, she has not shown that the claim is time-barred by the applicable statute of limitations. Accordingly, the motion for summary adjudication of the eighth cause of action is DENIED.

VII. Seventeenth Cause of Action

In the seventeenth cause of action for violation of the federal Racketeer Influenced and Corrupt Organizations Act (the “RICO Act”), 18 U.S.C. section 1962, subdivision (c), Plaintiffs allege that the defendants “formed an association-in-fact, whose joint and common purpose was to generate profits by defrauding Antara of millions of dollars of company assets.” (TAC, ¶ 163.) The defendants formed a scheme to defraud Antara and Plaintiffs of their money or property; the purpose of this scheme was “to lure Plaintiffs to accept employment at Antara based on fraud, inducing several individual Plaintiffs to advance money to Antara while promising they would be ‘made whole,’ and not paying Plaintiffs monies contractually and leally owed to them for wages, benefits, expense reimbursements and loans to Antara.” (Id. at ¶ 167.)

As a part of this scheme, the defendants allegedly “received misappropriated Antara funds at various points throughout the period from 2006 to 2010, including but not limited to those referenced in paragraphs 69 and 70” of the TAC. (TAC, ¶¶ 163, 168-170.) Dana, and others, made false statements and omitted material facts “via the use of wires including but not limited to the communications and omissions referenced in paragraphs 58, 59, and 62.” (Id. at ¶ 168.) The defendants “exercised control over Antara, as well as APRF, K.K. Eurus, Eurus Genomics, Eurus Corp., Bedford Funding, LIG and other sham business [entities].” (Id. at ¶ 164.) The defendants “ultimately controlled and managed the operations of the entire association-in-fact as well as frequently personally directing the day-to-day operations of the multiple business entities referenced above.” (Ibid.) The association-in-fact was engaged in interstate commerce and its activities affected and continue to affect interstate commerce as funds were transferred to multiple persons and entities in Hawaii, Wyoming, Virginia, and California. (Id. at ¶ 165.) The defendants allegedly associated with the association-in-fact enterprise and “did conduct or participate, directly or indirectly, in the conduct of the affairs of this enterprise through a pattern of racketeering activity ….” (Id. at ¶ 166.)

Congress passed the RICO Act to prevent “the infiltration of legitimate business by organized crime” including “defendants who might be described as ‘mobsters,’ ‘gangsters,’ and similar appellations . . . .” (Gervase v. Super. Ct. (1995) 31 Cal.App.4th 1218, 1229 (Gervase).) In order to plead a RICO claim, a plaintiff must allege “the defendant caused injury to the plaintiff’s business or property by engaging in a pattern of racketeering activity in connection with an enterprise which affects interstate commerce.” (Id. at p. 1232; accord Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 77.) Thus, the existence of a pattern of racketeering activity is an element of a RICO claim. (Gervase, supra, 31 Cal.App.4th at p. 1235.) “Title 18, United States Code section 1961, subdivision (1), provides a lengthy list of the criminal actions that can constitute racketeering activities.” (Id. at p. 1241.) This list includes wire fraud (18 U.S.C.S. § 1343) and mail fraud (18 U.S.C.S. § 1341). To plead a “pattern of racketeering activity,” a plaintiff must allege the defendant committed at least two predicate acts and facts sufficient to show the relationship between and continuity of the acts; multiple isolated incidents are not sufficient. (Id. at pp. 1232-33.)

Dory argues that the seventeenth cause of action fails because Plaintiffs cannot prove that she engaged a “pattern of racketeering activity.” (Mem. Ps. & As., p. 16:14-21.) Dory contends that Plaintiffs cannot establish that she engaged in a pattern of racketeering activity because “they lack evidence to show the requisite ‘continuity plus relationship’ for each of the asserted predicate acts ….” (Id. at p. 16:22-23.) Dory states that the claim is based on her receipt of funds as follows: (1) receiving transfers of Antara funds totaling over $93,000 to her personal bank accounts through check or wire transfer in or around December 2007; and (2) receiving over $76,000 from APRF between 2007 and 2010. (Id. at p. 17:24-28.) Dory asserts that Plaintiffs lack any evidence showing that those alleged transfers were made to or by her as only one check is made out directly to her. Dory also contends that Plaintiffs lack sufficient evidence showing that the transfers constitute illegal conduct. Finally, Dory contends that Antara is the sole victim and, consequently, the two acts of alleged racketeering cannot constitute a pattern of racketeering activity.

Dory’s argument is not well-taken. First, Dory’s evidence shows that at least two of the alleged transfers were made to Dory. Dana executed a check dated December 19, 2007, transferring $93,000 to an account that was owned by Dory, amongst others. (UMF No. 21.) As Dory was one of the owners of the subject account, it can reasonably be inferred that the transfer was made to her. In addition, a check from APRF dated April 20, 2009, expressly transferred $25,000 to Dory. (UMF No. 22.) Dory does not cite any legal authority providing that two predicates acts are insufficient to establish a pattern of racketeering activity. Moreover, the fact that the alleged predicate acts took place over a matter of years raises a triable issue of material fact as to whether there was closed-ended continuity. (See GICC Capital Corp. v. Technology Finance Group, Inc. (2d Cir. 1995) 67 F.3d 463, 467 (GICC) [courts have concluded that predicate acts occurring over “a matter of years” satisfied the closed-ended continuity requirement].)

Second, Dory’s perfunctory argument that Plaintiffs lack sufficient evidence showing that the transfers constitute illegal conduct lacks merit. (See Badie, supra, 67 Cal.App.4th at pp. 784-785; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 ([“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Third, Dory does not cite any legal authority providing that the existence of a single victim (as opposed to multiple victims) is, in and of itself, fatal to a RICO claim. Rather, the case law shows that the number of victims is merely a non-dispositive factor when evaluating closed-ended continuity. (See GICC Capital Corp. v. Technology Finance Group, Inc. (2d Cir. 1995) 67 F.3d 463, 467 [stating that the number of victims is a non-dispositive factor]; see also Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc. (2d Cir. 1989) 879 F.2d 10 [finding the continuity requirement satisfied when there was only a single victim].)

In light of the foregoing, Dory fails to show that there is no triable issue of material fact with respect to the seventeenth cause of action.

Accordingly, the motion for summary adjudication of the seventeenth cause of action is DENIED.

VIII. Eighteenth Cause of Action

In the eighteenth cause of action for violation of the RICO Act, 18 U.S.C. section 1962, subdivision (d), Plaintiffs allege that the defendants conspired to conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering activity. (TAC, ¶ 176.)

Dory argues that the eighteenth cause of action fails because Plaintiffs cannot show a substantive violation of 18 U.S.C. section 1962, subdivision (c). However, the seventeenth cause of action survives Dory’s motion. Consequently, this argument is not well-taken.

Accordingly, the motion for summary adjudication of the eighteenth cause of action is DENIED.

IX. Nineteenth Cause of Action

In the nineteenth cause of action for accounting, Plaintiffs allege that the defendants are “in sole possession of the books, records, accounts, and assets of Antara, the Eurus Entities, APRF, LIG, and Bedford Funding.” (TAC, ¶ 181.) Plaintiffs further allege that “[t]he exact amount of misappropriated Antara assets owed to Plaintiffs by [the] [d]efendants is unknown to them and cannot be ascertained without an accounting of the profits, losses, assets, and liabilities of Antara, the Eurus Entities, APRF, LIG, and Bedford Funding.” (Id. at ¶ 182.)

Dory asserts that the accounting claim fails because the preceding causes of action do not survive her motion. This argument is not well-taken because the eighth, eleventh, thirteenth, seventeenth, and eighteenth causes of action all survive Dory’s motion.

Accordingly, the motion for summary adjudication of the nineteenth cause of action is DENIED.