Filed 5/22/20 Winston v. Trousdale NK, LLC CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MATTHEW WINSTON,

Plaintiff and Appellant,

v.

TROUSDALE NK, LLC, et al.,

Defendants and Respondents.

B294808

(Los Angeles County

Super. Ct. No. BC650916)

APPEAL from an order of the Superior Court of Los Angeles, Randolph M. Hammock, Judge. Reversed with instructions.

Leonard, Dicker & Schreiber, Richard C. Leonard and Kevin S. Dicker for Plaintiff and Appellant.

Ervin Cohen & Jessup, Michael D. Murphy and Banu S. Naraghi for Defendants and Respondents.

____________________________

Plaintiff and appellant Matthew Winston (Winston) initiated a civil action against Henrik Strandgaard (Strandgaard); defendants and respondents Trousdale NK, LLC; Thrasher NK, LLC; Trousdale US Aussie, LLC; Trousdale Development, LLC; and various other defendants, alleging, in his seventh cause of action, a claim for intentional interference with contractual relations. It is this cause of action that is at issue in this appeal.

Winston alleges he and Strandgaard were members of Trousdale AZ, LLC and Palm 504, AZ, LLC (collectively, the Arizona LLCs). These Arizona LLCs, in turn, owned membership interests in two California limited liability companies that owned real estate in Beverly Hills— 460 Trousdale, LLC and 2545 Bowmont, LLC (the Primary LLCs). Respondents Trousdale NK, LLC and Thrasher NK, LLC also owned membership interests in the Primary LLCs and were controlled by Nicholas Keros (Keros). Winston further avers that in violation of the Arizona LLCs’ operating agreements, Trousdale NK, LLC and Thrasher NK, LLC induced Strandgaard to assign to them the Arizona LLCs’ membership interests in the Primary LLCs without Winston’s written consent.

The trial court sustained a demurrer to Winston’s intentional interference claim, reasoning that the Arizona LLCs’ operating agreements unambiguously conferred upon Strandgaard unilateral authority to assign the Arizona LLCs’ interests in the Primary LLCs to Trousdale NK, LLC and Thrasher NK, LLC. We conclude the trial court erred because the Arizona LLCs’ operating agreements were reasonably susceptible to an interpretation that precluded Strandgaard from assigning those interests without Winston’s written consent. Accordingly, the trial court should not have sustained Trousdale NK, LLC’s and Thrasher NK, LLC’s demurrer to the interference cause of action and dismissed them from the case. We therefore reverse the trial court’s order dismissing them from the case with directions to overrule their demurrer to Winston’s interference cause of action.

FACTUAL AND PROCEDURAL BACKGROUND

Although we set forth below only those facts relevant to this appeal, those facts are still convoluted.

1. The second amended complaint
2.
On February 20, 2018, Winston, individually and as the manager of, and on behalf of, the Arizona LLCs, filed a verified second amended complaint against Keros; the Primary LLCs; Strandgaard; Jennie Levin (Levin); the Law Offices of Jennie Levin, P.C.; Hankey Investment Company, L.P.; Hankey Capital, LLC; and respondents Trousdale NK, LLC; Thrasher NK, LLC; Trousdale US Aussie, LLC; and Trousdale Development, LLC.

A. The formation of the Arizona LLCs and the Primary LLCs
B.
The Arizona LLCs were limited liability companies formed in August 2015 and organized under the laws of Arizona. The Arizona LLCs each had two members: (1) Winston, who was the inaugural manager of each entity; and (2) Strandgaard, a Danish citizen who, during the relevant time period, lived in either England or Germany. Prior to the Arizona LLCs’ termination, Strandgaard had a 51 percent membership interest and Winston a 49 percent membership interest in each entity. Strandgaard and Winston each had a 50 percent interest in the profits of the Arizona LLCs. Although Winston did not contribute any monetary capital to the Arizona LLCs, he agreed to: “[C]ontribute his knowledge, expertise, and time in all matters pertaining to the purposes of the business of [the Arizona LLCs],” which was “the acquisition, development and sale of real estate properties”; and “find real estate investment opportunities and present them to Strandgaard for his written approval.”

At around the same time the Arizona LLCs were formed, Strandgaard and Winston sought to acquire interests in real property located at 460 Trousdale Place in Beverly Hills (Trousdale Property) and at 2545 Bowmont Drive in Beverly Hills (Bowmont Property). To facilitate those acquisitions, Strandgaard and Winston agreed with Keros to form the Primary LLCs, which are limited liability companies organized under the laws of California.

In forming the Primary LLCs, Strandgaard, Winston, and Keros (the managing member of Trousdale NK, LLC and Thrasher NK, LLC), agreed that Trousdale NK, LLC would be the manager of 460 Trousdale, LLC and that 460 Trousdale, LLC would hold title to the Trousdale Property. They further agreed that Thrasher NK, LLC would be the manager of 2545 Bowmont, LLC, with 2545 Bowmont, LLC holding title to the Bowmont Property. Trousdale AZ, LLC and Trousdale NK, LLC would each own 50 percent of 460 Trousdale, LLC. Palm 504, AZ, LLC and Thrasher NK, LLC would each own 50 percent of 2545 Bowmont, LLC. Thus, the managing entities of the Primary LLCs were LLCs affiliated with Keros, and these same entities owned a 50 percent membership interest in the Primary LLCs. The Arizona LLCs owned the other 50 percent membership interests in the Primary LLCs.

Respondents Trousdale NK, LLC’s and Thrasher NK, LLC’s initial capital contribution to the Primary LLCs was an assignment of their respective rights to the Properties, whereas the Arizona LLCs’ initial capital contribution was to arrange for an entity named Ricius to provide loans to the Primary LLCs in an amount sufficient to enable them to acquire the Properties (the Ricius Loans). Further, to the extent that Trousdale NK, LLC and Thrasher NK, LLC had advanced any funds in connection with the acquisition of the Properties prior to the formation of the Primary LLCs, Keros, Strandgaard, and Winston agreed that all such funds “were to be repaid” to Trousdale NK, LLC and Thrasher NK, LLC upon the formation of the Primary LLCs. “As a result[,] . . . Keros, Strandgaard, [and] Winston had [no] monetary investment in the Properties as of the time of the formation of the Primary LLCs and the acquisition of the Properties.” Furthermore, the Arizona LLCs’ membership interests in the Primary LLCs constituted “substantially all of the [Arizona] LLCs’ assets.”

The instant appeal concerns the interpretation of section 5.4(d), section 5.5(b), section 5.5(c), and section 5.5(d) of the Arizona LLCs’ operating agreements. Section 5.4(d) of the Arizona LLCs’ operating agreements provides in pertinent part: “[T]he Manager shall not take any of the following actions on behalf of the Company[ ] unless a Majority of Members[ ] has consented to the taking of such action[:] [¶] . . . [¶] (d) The disposition of all or a substantial part of the Company’s assets not in the ordinary course of business.”

Section 5.5(b), section 5.5(c), and section 5.5(d) of the Arizona LLCs’ operating agreements provide in relevant part: “No Member may without the written consent of the other Member: [¶] . . . [¶] (b) Assign, transfer, pledge, compromise or release any of the claims of or debts due the Company except upon payment in full, or arbitrate or consent to the arbitration of any of the disputes or controversies of the Company; [¶] (c) Make, execute or deliver any assignment for the benefit of creditors. Or [sic] any bond, confession of judgment, chattel mortgage, deed, guarantee, indemnity bond, surety bond, or contract to sell or contract Of [sic] sale of all or substantially all of the property of the Company; [or] [¶] (d) Lease or mortgage any Company real estate or interest therein or enter into any contract for any such purpose.”

In paragraph 20 of the second amended complaint, Winston alleges that section 5.5(b), section 5.5(c), and section 5.5(d) are among the “various provisions in the Operating Agreements of the Arizona LLCs [that] provide that without the written consent of all of the members, no member (including the manager) unilaterally could take [certain] actions on behalf of . . . the Arizona LLCs.”

C. The disputes between the parties
D.
“By June of 2016, various disputes had arisen between Keros, on the one hand, and the Arizona LLCs, on the other, with respect to the operation of the Primary LLCs and the handling of the Properties.” In particular, on June 7, 2016, Strandgaard sent an e-mail to Winston and Keros “in which he expressed his desire to get out of the Bowmont and Trousdale Property Investments”; specifically, Strandgaard indicated his willingness to sell the Bowmont Property for $8 million and to accept a $12 million offer to sell the Trousdale Property. Additionally, on September 14, 2016, Keros’s counsel wrote a letter to the Arizona LLCs’ counsel, claiming that the Arizona LLCs breached the operating agreements of the Primary LLCs by failing to make additional loans to the Primary LLCs. The Arizona LLCs’ counsel and Keros’s counsel thereafter exchanged correspondence in which each attorney accused the other attorney’s client of various breaches of the Primary LLCs’ operating agreements.

On October 28, 2016, Keros’s counsel made the following offer, on behalf of Keros and respondents Trousdale NK, LLC and Thrasher NK, LLC, to the Arizona LLCs’ counsel: “In the interest of removing the considerable distraction that your clients have created for both partnerships [the Primary LLCs], Keros is offering to pay off both Ricius loans, in full, plus the 9% interest, in exchange for the transfer of your clients’ interest in the partnerships.” “Keros knew that the offer he was making for the membership interests [in the Primary LLCs] . . . was substantially below the fair market value of the Properties and the Arizona LLCs’ interests in the Properties.” Further, on November 3, 2016, the Arizona LLCs’ counsel informed the attorney representing Keros, Trousdale NK, LLC, and Thrasher NK, LLC, along with the attorney for the Primary LLCs, that Palm 504, AZ, LLC would be selling its interest in 2545 Bowmont, LLC at a price that was “way below fair market value.” (Boldface & underscoring omitted.)

On October 28, 2016, Strandgaard sent an e-mail to Keros and Keros’s counsel in which he stated: “As a 51% member of [the Arizona LLCs] (I am attaching both Operating agreements for [the Arizona LLCs], please refer to Section 2.8),[ ] I hereby accept the offer, as outlined in your correspondence of October 28, 2016 [sic] whereby Keros will pay off Ricius loans in full with 9% interest in exchange for the transfer of our interest in the partnerships. [¶] Please send me the requisite paperwork to effectuate the transfer.” “[Strandgaard] knew that the offer was unacceptable to Winston, who stood not only to gain nothing from the offer, but also to lose his entire investment in time and money in the Properties through his interests in the Arizona LLCs.”

E. The second amended complaint’s conspiracy allegations
F.
“Knowing that Winston was the manager of the Arizona LLCs and that both Winston and Strandgaard’s approval was needed in order for the Arizona LLCs to take certain actions (including, without limitation, the transfer of the Arizona LLC[s’] interests in the Primary LLCs)[,] a conspiracy was created by . . . [Keros, Trousdale NK, LLC and Thrasher NK, LLC,] . . . the Primary LLCs[,] . . . Strandgaard, . . . [respondent] Trousdale Development, [LLC] [(i.e., a respondent and the manager of Trousdale US Aussie, LLC),] Trousdale US Aussie, [LLC] [(i.e., the entity to which 460 Trousdale LLC later sold the Trousdale Property)] [and others] [(collectively, the Conspiring Defendants)] for the purpose of: (i) giving Keros complete control and ownership of the Properties; (ii) denying Winston any interest in the Properties or the Primary LLCs; and (iii) allowing Strandgaard to exit from the investment in the Properties and repay the Ricius Loans . . . .”

In furtherance of this conspiracy, Strandgaard executed majority member resolutions dated October 27, 2016 that were designed to remove Winston from his position as manager of the Arizona LLCs.

“As a further part of the Conspiracy, on or before October 31, 2016, the Conspiring Defendants agreed that Strandgaard would assign and transfer the membership interests of the Arizona LLCs in the Primary LLCs to [respondents Trousdale NK, LLC and Thrasher NK, LLC] (the ‘Assignments’), without notifying Winston of such Assignments, even though, pursuant to the Operating Agreements of the Arizona LLCs, the unanimous consent of the members of the Arizona LLCs was required to effectuate such transfers.” On November 11, 2016, Strandgaard and Keros executed the assignments; Strandgaard signed the assignments in his individual capacity and as the manager of the Arizona LLCs, and Keros signed the assignments in his individual capacity and as the manager of respondents Trousdale NK, LLC and Thrasher NK, LLC.

The assignments “were not to be effective until payment was made by [respondents Trousdale NK, LLC and Thrasher NK, LLC] to Strandgaard [(i.e., until the Ricius Loans were paid off)], which did not occur until on or about December 15, 2016.” “As part of the Conspiracy, the fact of the Assignments was intentionally kept secret from Winston until April 6, 2017.” The assignments “have the effect of denying Winston any interest in the Primary LLCs and render his interest in the Arizona LLCs worthless[ ] because all of the assets of the Arizona LLCs . . . have been transferred, without Winston receiving any consideration.”

Each assignment contains the following general release: “For good and valuable consideration, receipt of which is hereby acknowledged, except for the obligations under this Agreement, [the Arizona LLCs] and Strandgaard each releases and forever discharges Keros and [respondents Trousdale NK, LLC and Thrasher NK, LLC] and all of [their] past and present officers, members, agents, employees, representatives, attorneys, parents, subsidiaries, affiliates, successors and assigns of any and all claims, debts, liabilities, demands, obligations, costs, expenses, actions and causes of action, of every nature, character and description, known and unknown, which [the Arizona LLCs] and/or Strandgaard now owns or holds, or at that time may own or hold, against them, whether based on contract, tort, statutory or other legal or equitable theory of relief, in any way arising out of, connected to, or related to any act, omission, or thing caused or suffered to be done, including, but not limited to, claims that in any way relate to, are based upon, or arise out of, (i) the relationship between [the Arizona LLCs] and [respondents Trousdale NK, LLC and Thrasher NK, LLC], (ii) the [Primary LLCs’] Operating Agreement[s], and/or (iii) the [Properties] (including the management and operation of [the Primary LLCs] by [respondents Trousdale NK, LLC and Thrasher NK, LLC]).”

In December 2016, Keros borrowed funds from Hankey Capital, LLC in order to repay the Ricius Loans (i.e., “in order to obtain the necessary cash to pay the consideration set forth in the Assignments”). The new loans issued by Hankey Capital, LLC were secured by modifications to deeds of trust against the two Properties; the modifications were executed by “Keros, purportedly on behalf of the Primary LLCs.” These transactions between Keros and Hankey Capital, LLC “were done without [Winston’s knowledge or] approval . . . and in violation of the express terms of the Operating Agreements of the Primary LLCs and the Operating Agreements of the Arizona LLCs.”

On or about July 6, 2017, 460 Trousdale, LLC sold the Trousdale Property to respondent Trousdale US Aussie, LLC without Winston’s knowledge. Respondent Trousdale Development, LLC is a California limited liability company that is the manager of, and has a 50 percent membership interest in, respondent Trousdale US Aussie, LLC, which is also a California limited liability company. GHCS, LLC, a Nevada limited liability company, also holds 50 percent of the membership interests of respondent Trousdale US Aussie, LLC. Keros has a 98 percent membership interest in, and is the manager of, respondent Trousdale Development, LLC. Keros’s daughter has a 1 percent membership interest in respondent Trousdale Development, LLC, and Keros’s brother has the remaining 1 percent membership interest in that entity. Thus, Keros controlled Trousdale US Aussie, LLC, because he was the manager of Trousdale Development, LLC.

On September 29, 2017, the Arizona LLCs’ counsel (Levin) filed articles of termination of the Arizona LLCs with the Arizona Corporation Commission; Strandgaard had previously signed the articles of termination “in secret . . . on January 20, 2017.”

G. The seventh cause of action for intentional interference with contractual relations
H.
The second amended complaint asserts the following causes of action: (1) declaratory and injunctive relief; (2) breach of contract; (3) breach of contract; (4) breach of fiduciary duty; (5) breach of fiduciary duty; (6) breach of fiduciary duty; (7) intentional interference with contract; and (8) conspiracy to defraud. This appeal concerns only the seventh cause of action for intentional interference with contractual relations.

Winston pleads the seventh cause of action for intentional interference with contractual relations, in his individual capacity and purportedly on behalf of the Arizona LLCs, against Keros; Trousdale NK, LLC and Thrasher NK, LLC; the Primary LLCs; Levin; the Law Offices of Jennie Levin, P.C.; Hankey Capital, LLC; and Hankey Investment Company, L.P. In connection with that cause of action, Winston alleges that “[a]t all times relevant, . . . Keros[;] [respondents Trousdale NK, LLC and Thrasher NK, LLC;] the Primary LLCs[;] Levin[; and the Law Offices of Jennie Levin, P.C.] . . . were aware of the terms of the Operating Agreements for the Arizona LLCs between Winston and Strandgaard and knew that the written approval of all of their members was necessary for the Arizona LLCs to take certain actions.” He further avers that “Defendants intentionally interfered with the Arizona LLCs[’] Operating Agreements by, among other things, entering into the Assignments with Strandgaard, without obtaining Winston’s approval[,] in an attempt to deny the Arizona LLCs and Win[s]ton of their actual and beneficial interests in the Primary LLCs and the Properties.” Winston avers that, “[a]s a direct and proximate result of the Defendants’ actions, Plaintiffs have been damaged in a sum not yet ascertainable, but which they believe is in excess of $20,000,000.”

Respondents Trousdale US Aussie, LLC and Trousdale Development, LLC are not named as defendants on the seventh cause of action. Furthermore, the second amended complaint indicates that Trousdale Development, LLC and Trousdale US Aussie, LLC did not “join[ ] the Conspiracy” until “they . . . acquired an interest in the Trousdale Property.”

3. The demurrer to the second amended complaint
4.
Keros; the Primary LLCs; Trousdale NK, LLC; Thrasher NK, LLC; Trousdale Development, LLC; and Trousdale US Aussie, LLC (collectively, the demurring defendants) filed a demurrer to the second amended complaint. The demurring defendants argued (inter alia) that Winston could not assert derivative claims on behalf of the Arizona LLCs because he failed to serve a demand to bring suit on Strandgaard as the manager of those entities.

The demurring defendants further argued that the second amended complaint failed to state a claim for intentional interference with contractual relations because it did not aver “any facts establishing any breach of the Arizona LLC[s’] Operating Agreements that caused injury to Winston.” As noted above, although they demurred to the intentional interference cause of action, Trousdale Development, LLC and Trousdale US Aussie, LLC were not named as defendants to that cause of action. In particular, they contended that section 5.4(d) of the Arizona LLCs’ operating agreements “permitted” Strandgaard to “dispose of the Arizona [LLCs’] assets via the Assignment[s].” They also argued that the pleading failed to allege sufficient facts showing that Winston was damaged by this purported breach of the Arizona LLCs’ operating agreements, because “the sole injury alleged was the purported denial of Winston of his ‘actual and beneficial interests in the Primary LLCs and the Properties.’ ”

Winston countered that Arizona’s demand requirement for derivative claims was inapplicable because the Arizona LLCs were closely-held corporations. He also claimed that sections 5.5(b) and 5.5(c) of the Arizona LLCs’ operating agreements precluded Strandgaard from doing the following without Winston’s written consent: releasing the Arizona LLCs’ claims against Trousdale NK, LLC and Thrasher NK, LLC, and transferring all, or substantially all of the Arizona LLCs’ assets by assigning the Arizona LLCs’ membership interests in the Primary LLCs. Additionally, Winston contended that the assignments caused him to suffer harm because he “received absolutely no benefit from the transfers” and “Strandgaard was aware that he was selling the Arizona LLCs’ interest in the Properties at below market value.”

In reply, the demurring defendants argued that section 5.5(b) of the Arizona LLCs’ operating agreements was inapplicable because the release included in the assignments was severable from the assignments’ other provisions. They further asserted that section 5.5(c) of the Arizona LLCs’ operating agreements governed only “a contract for sale in favor of Arizona LLC creditors.” (Underscoring & boldface omitted.)

5. The trial court’s ruling on the demurrer
6.
On May 22, 2018, the trial court sustained the demurrer as to the second amended complaint’s first, second, fourth, seventh, and eighth causes of action, and overruled the demurrer as moot as to the third, fifth, and sixth causes of action because those claims were asserted against only nondemurring defendants. The trial court granted Winston leave to amend “any and all individual claims which he may currently have against any party in this action” within 30 days.

The ruling further provided: “There is no leave to amend, at this time, as to any derivative claims which [Winston] may have or possess (in any capacity) on behalf of . . . the ‘Arizona LLC Plaintiffs.’ ” The court reasoned that Winston could not bring derivative claims in the instant action because he had not complied with Arizona’s prelitigation demand requirement. The court further reasoned that Arizona law does not recognize a “ ‘futility’ exception” to this prelitigation demand requirement and that close corporations are not exempt from this requirement.

The court further explained that “the interest held by an LLC member does not include any interest in specific property held by an LLC.” For instance, “any cause[ ] of action concerning an interest in the subject properties” is a derivative cause of action that “belong[s] to the Arizona LLC Plaintiffs” and “not . . . Winston in his individual capacity.” Along the same vein, the court found Winston’s allegations that Trousdale NK, LLC and Thrasher NK, LLC “took certain actions in violation of the Operating Agreements of the Primary LLCs without obtaining written approval of the Arizona LLCs” constitute “a derivative claim belonging to the Arizona LLCs.” (Boldface omitted.) The trial court stated that, in lieu of filing an amended pleading, Winston “may simpl[y] choose to dismiss his [second amended c]omplaint without prejudice, and attempt to correct any deficiencies as to any derivative claims.”

In contrast, the trial court stated that Winston’s interference cause of action included a direct claim. Specifically, the trial court identified allegations in the seventh cause of action that the defendants to that cause of action had “intentionally interfered with the Arizona LLC Operating Agreements between Winston and Strandgaard by entering into the Assignments with Strandgaard without obtaining Winston’s approval.” The court recognized that this cause of action constitutes “a direct claim held by Winston himself, as a member of the Arizona LLCs,” and not a derivative claim.

Notwithstanding the existence of a direct claim, the trial court sustained the demurrer as to the seventh cause of action on the ground that “demurring Defendants’ acts did not induce a breach or disruption of the contractual relationship between Winston and Strandgaard relative to the Arizona LLCs[’] Operating Agreements.” (Fn. omitted.) The court concluded Strandgaard was contractually permitted to remove Winston as manager by issuing the majority member resolutions dated October 27, 2016. The court further reasoned that “Strandgaard, as manager and majority of members of the Arizona LLCs[,] was authorized by § 5.4(d) of the Arizona LLCs’ Operating Agreements to transfer the Arizona LLCs’ membership interests in the Primary LLCs without Plaintiff Winston’s consent.” Based on its interpretation of this provision, the trial court found that Winston’s “citation [in paragraph 20 of the second amended complaint] to the restrictions in the Operating Agreements of Arizona LLCs which required the written consent of all members [citation] is inapplicable.”

The trial court also “d[id] not find that the terms of the Operating Agreements are ambiguous such that extrinsic evidence is required to interpret them.” Finally, the trial court ruled that “the demurrer to the seventh cause of action is SUSTAINED, except as to . . . Strandgaard, Hankey Capital, LLC and Hankey Investment Company, L.P.” because they had not filed the demurrer. (As discussed below, these three defendants were later dismissed from the action.) Winston elected not to file an amended pleading after the trial court sustained the demurrer to the seventh cause of action.

7. The trial court’s order of dismissal, Winston’s notice of appeal, and the trial court’s order staying the action pending the appeal
8.
On November 5, 2018, the trial court dismissed with prejudice the second amended complaint’s first, second, fourth, seventh, and eighth causes of action as against Keros; the Primary LLCs; Trousdale NK, LLC; Thrasher NK, LLC; Trousdale US Aussie, LLC; and Trousdale Development, LLC. After the issuance of this dismissal order, no claims were pending in the instant action against Keros; the Primary LLCs; Trousdale NK, LLC; Thrasher NK, LLC; Trousdale US Aussie, LLC; or Trousdale Development, LLC. The trial court also dismissed without prejudice the remainder of the second amended complaint, except for the sixth cause of action “as against Defendants . . . Levin and the Law Offices of Jennie Levin, P.C.”

The lower court reasoned that “by failing to file a [third amended complaint] within 30 days[ of the prior order sustaining the demurrer,] the Court’s order sustaining the demurrer to the seventh and eighth causes of action operated as a dismissal with prejudice as to all of the following Defendants: . . . Keros, [the Primary LLCs,] . . . Trousdale NK, LLC, Thrasher NK, LLC, . . . Trousdale US Aussie, LLC, and Trousdale Development, LLC.” (Boldface, underscoring, & fn. omitted.) The court further reasoned that Winston “lost the right to voluntarily dismiss his . . . first, second, fourth, seventh and eighth causes of action without prejudice” by failing to do so within 30 days of the prior ruling sustaining the demurrer. In addition, the court observed that prior to the November 5, 2018 order, Winston had filed a document purporting to voluntarily dismiss without prejudice the entire action, and that he later requested that the dismissal be vacated as to the sixth cause of action against Levin and the Law Offices of Jennie Levin, P.C. The court thus dismissed the remainder of the second amended complaint without prejudice, except for the sixth cause of action against Levin and the Law Offices of Jennie Levin, P.C.

On December 27, 2018, Winston appealed the trial court’s November 5, 2018 order of dismissal as to Trousdale NK, LLC; Thrasher NK, LLC; Trousdale US Aussie, LLC; and Trousdale Development, LLC. On April 8, 2019, the trial court stayed the instant action, along with a related action that Winston had later filed, pending the issuance of our remittitur on the instant appeal.

STANDARD OF REVIEW

“We independently review the ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action.” (Santa Ana Police Officers Assn. v. City of Santa Ana (2017) 13 Cal.App.5th 317, 323.) “[W]e accept as true the well-pleaded allegations in [the] . . . complaint. ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]’ [Citation.] ‘ “[A] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” [Citation.]’ [Citations.]” (See Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) Additionally, “[f]acts appearing in exhibits attached to the complaint are also accepted as true and given precedence over inconsistent allegations in the complaint.” (Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1241, fn. 1.)

“ ‘[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.’ ” (Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 257.) The trial court also commits error if it sustains a demurrer without leave to amend and “ ‘there is a reasonable possibility that the defect can be cured by amendment[.]’ ” (See Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1035.) Furthermore, “a general demurrer may not be sustained . . . as to a portion of a cause of action. [Citation.] . . . [D]efendants may attack any portion of a cause of action that is ‘substantively defective on the face of the complaint . . . by filing a motion to strike.’ ” (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167 (Daniels).) Furthermore, “ ‘ “[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ ” (Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 787.)

DISCUSSION

As an initial matter, we observe that we have jurisdiction, even though claims are pending in the trial court. “Under the ‘one final judgment’ rule, an order or judgment that fails to dispose of all claims between the litigants is not appealable under Code of Civil Procedure section 904.1, subdivision (a).” (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436.) “This rule does not apply, however, ‘ “when the case involves multiple parties and [an order of dismissal] is entered which leaves no issue to be determined as to one party. [Citations.]” ’ [Citation.]” (See Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9.) The trial court’s November 5, 2018 order dismissed with prejudice all claims against respondents Trousdale NK, LLC; Thrasher NK, LLC; Trousdale US Aussie, LLC; and Trousdale Development, LLC, thereby leaving no issue to be determined as to those parties. (See Factual and Procedural Background part 4, ante.) Thus, Winston may appeal the dismissal order insofar as it applies to those four respondents.

At bottom, the sole issue on this appeal is whether the seventh cause of action failed to state a claim for intentional interference with contractual relations. “The elements of [an intentional interference with contractual relations claim] are ‘(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.’ [Citation.]” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289.)

The trial court sustained the demurrer to the seventh cause of action on the ground that the “demurring Defendants’ acts did not induce a breach or disruption of the contractual relationship between Winston and Strandgaard relative to the Arizona LLCs[’] Operating Agreements.” (Fn. omitted.) Specifically, the trial court found that “Strandgaard, as manager and majority of members of the Arizona LLCs[,] was authorized by § 5.4(d) of the Arizona LLCs’ Operating Agreements to transfer the Arizona LLCs’ membership interests in the Primary LLCs without Plaintiff Winston’s consent.”

On appeal, Winston argues that an ambiguity in the Arizona LLCs’ operating agreements barred the trial court from ruling, at the demurrer stage, that these contracts had “authorized” Strandgaard to “transfer the Arizona LLCs’ membership interests in the Primary LLCs without Plaintiff Winston’s consent.” We agree. For the reasons discussed below, sections 5.4(d) and 5.5(c) of the Arizona LLCs’ operating agreements, when read together, are reasonably susceptible to the interpretation that the Arizona LLCs’ operating agreements did not authorize Strandgaard (as the “Manager” and the “Majority of Members”) to assign the Arizona LLCs’ interests in the Primary LLCs to Trousdale NK, LLC and Thrasher NK, LLC. Where an agreement is reasonably susceptible to an interpretation supporting a cause of action, it is error to sustain a demurrer based on a competing interpretation of the agreement. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 229 (Rutherford) [“ ‘While [the plaintiff’s] interpretation . . . ultimately may prove invalid,’ at the pleading stage, it is sufficient that the agreement is reasonably susceptible of this meaning”].) The trial court therefore erred in resolving this ambiguity upon a demurrer.

Section 5.4(d) of the Arizona LLCs’ operating agreements provides in relevant part: “[T]he Manager shall not take any of the following actions on behalf of the Company unless a Majority of Members has consented to the taking of such action[:] [¶] . . . [¶] (d) The disposition of all or a substantial part of the Company’s assets not in the ordinary course of business.” By providing what a “Manager” “shall not” do “unless a Majority of Members[ ] has consented to the taking of such action,” section 5.4(d) merely identifies a necessary, but not a sufficient, condition that must occur before the manager can dispose of all, or a substantial part of, the Arizona LLCs’ assets not in the ordinary course of business. (Cf. Marciano v. DCH Auto Group (S.D.N.Y. 2014) 14 F.Supp.3d 322, 335–336 [holding that a contractual provision that agreements to modify the contract “ ‘are [not] valid unless they are in writing and signed by the President of the Company’ ” created “a necessary but not sufficient condition to the effectiveness of any” such agreements].)

Thus, the text of section 5.4(d) may not necessarily preclude a different provision from imposing a condition that must occur before the manager may dispose of all, or a substantial part of the Arizona LLCs’ assets not in the ordinary course of business—here, obtaining the consent of the other member before undertaking that course of action.

Section 5.5(c) of the Arizona LLCs’ operating agreements may be reasonably interpreted to be just such a condition on the manager’s authority under section 5.4(d). Section 5.5(c) of the Arizona LLCs’ operating agreements states in pertinent part: “No Member may without the written consent of the other Member: [¶] . . . [¶] (c) Make, execute or deliver any assignment for the benefit of creditors. Or [sic] any bond, confession of judgment, chattel mortgage, deed, guarantee, indemnity bond, surety bond, or contract to sell or contract Of [sic] sale of all or substantially all of the property of the Company.”

Preliminarily, we note that the inclusion of a period before the word “[o]r” turns the second sentence of this provision into a meaningless fragment. We therefore disregard that period and read all of section 5.5(c) as one continuous sentence. (See McNeil v. Graner (1949) 91 Cal.App.2d 858, 864 [“ ‘Clerical or grammatical errors [in an instrument] may be corrected’ ”]; 11 Williston on the Law of Contracts (4th ed. 2012) § 32:9, pp. 734–736 [“[A] court will disregard both grammatical constructs and the punctuation used in the written agreement when the context of the contract shows that grammatical or punctuation errors have occurred”].)

Respondents argue that only transactions “conducted for the benefit of creditors” are covered by section 5.5(c). Respondents’ interpretation is not consistent with the nearest reasonable referent canon. This interpretive canon provides: “ ‘When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.’ ” (Davis v. Fresno Unified School Dist. (2015) 237 Cal.App.4th 261, 288, fn. omitted (Davis).)

Section 5.5(c) provides a list of instruments that a member may not make, execute, or deliver without the written consent of the “other Member.” These instruments are not arranged in a parallel series. The noun “assignment” is in the prepositional phrase “for the benefit of creditors,” whereas the other nouns, including “bond[s],” “confession[s] of judgment,” and “contract[s] to sell . . . all or substantially all of the property of” the Arizona LLCs’ property, are not. Under the nearest reasonable referent canon, the limitation “for the benefit of creditors” presumptively applies only to the first element in the series. (See Davis, supra, 237 Cal.App.4th at p. 288.)

Respondents contend, without any citation to authority, that “[t]he use of the word ‘Or[ ]’ . . . obviously links the subsequent types of transactions to the term ‘for the benefit of creditors,’ such that all transactions listed in that section requiring unanimous consent are those conducted for the benefit of creditors.” (Italics added.) Even if respondents’ interpretation were reasonable, it is not the only reasonable interpretation.

Section 5.5(c) of the Arizona LLCs’ operating agreements is additionally ambiguous because a member may also be a manager. Section 5.5(c) forbids a “Member” from making, executing, or delivering a contract to sell all, or substantially all, of the Arizona LLCs’ property without the consent of another “Member.” Does section 5.5(c)’s use of the term “Member” apply to any member, irrespective of the capacity in which that member makes, executes, or delivers a contract for the sale of all, or substantially all, of the Arizona LLCs’ property? Winston no doubt will argue that it does; demurring respondents most likely will counter that section 5.5(c) applies only to members who are not managers. These are ambiguities that are not susceptible to resolution upon a demurrer.

Respondents further argue that Winston did not allege sufficient facts demonstrating that they engaged in intentional acts designed to induce a breach of the contractual relationship. This argument is derivative of demurring respondents’ contention that section 5.4(d) of the Arizona LLCs’ operating agreements unambiguously “states that a Majority of Members is sufficient to approve a disposition of assets . . . .” (Italics added.) Because we disagree that section 5.4(d), when read in the context of other provisions in the operating agreements, unambiguously authorized Strandgaard to assign substantially all of the Arizona LLCs’ assets to Trousdale NK, LLC and Thrasher NK, LLC, respondents’ argument fails.

For all these reasons, even without considering Winston’s arguments regarding the trial court’s purported error in not considering parol evidence, we conclude that Winston has pleaded a viable claim for intentional interference with contractual relations. (See Rutherford, supra, 223 Cal.App.4th at p. 229.) Further, respondents did not move to strike any specific allegations in that cause of action. We thus do not address respondents’ contention that other aspects of Winston’s seventh cause of action may also fail to state a claim (e.g., allegations based on the release included in the assignments). (See Daniels, supra, 246 Cal.App.4th at p. 1167.)

In sum, the trial court erred in sustaining the demurrer as to the seventh cause of action against respondents Trousdale NK, LLC and Thrasher NK, LLC. Because Trousdale US Aussie, LLC and Trousdale Development, LLC are not named as defendants to the seventh cause of action, we express no opinion on whether the trial court otherwise properly dismissed them from the case. (See 16 Cal.Jur.3d (2012) Courts § 34, p. 417 [“[A]dvisory opinions indicat[e] what the law would be on a hypothetical state of facts. [¶] . . . [T]he rendering of advisory opinions does not fall within the functions or jurisdiction of appellate courts,” fn. omitted].)

DISPOSITION

The trial court’s order dismissing Trousdale NK, LLC and Thrasher NK, LLC from this action with prejudice is reversed, and we remand this cause to the trial court with directions to: (1) vacate its order sustaining the demurrer to the second amended complaint, and (2) issue a new order that (a) overrules Trousdale NK, LLC’s and Thrasher NK, LLC’s demurrer to the seventh cause of action, and (b) is otherwise consistent with this opinion. Winston is awarded his costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WHITE, J.*