On 11/18/2015 GREGORY ECONN filed a Contract - Other Contract lawsuit against BENEFITS EXCHANGE ALLIANCE INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHANIE M. BOWICK. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHANIE M. BOWICK
BENEFITS EXCHANGE ALLIANCE INC.
PENBEN FINANCIAL SERVICES INC.
PENSION & BENEFIT INSURANCE SERVICES INC
ADSH INVESTMENTS I INC.
FORMALLY KNOWN AS PENBEN FINANCIAL SERVICES INC.
ADSH INVESTMENTS II INC.
BROWNE GEORGE ROSS LLP
NICHOLSON GUY C. ESQ.
MORTENSON MICHAEL D.
HIRSCH MAXIMILLIAN WOLDEN
BAKER & HOSTETLER LLP
MORTENSON MICHAEL D. ESQ.
6/25/2018: DECLARATION OF CRAIG A. TAGGART IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
7/23/2018: SUBSTITUTION OF ATTORNEY
4/29/2019: Motion for Leave to Amend
5/28/2019: Minute Order
12/9/2015: NOTICE OF CASE MANAGEMENT CONFERENCE
2/22/2016: CASE MANAGEMENT STATEMENT
3/3/2016: DECLARATION OF MICHAEL D. MORTENSON IN SUPPORT OF BENEFITS EXCHANGE ALLIANCE, INC.'S MOTION TO COMPEL CHRISTOPHER FEIA'S COMPLIANCE WITH SUBPOENA AND FOR SANCTIONS
9/22/2016: SUBSTITUTION OF ATTORNEY
9/30/2016: NOTICE OF HEARING ON PLAINTIFF'S MOTION TO COMPEL PENSION & BENEFIT INSURANCE SERVICES, INC.'S COMPLIANCE WITH SUBPOENA DUCES TECUM
1/4/2017: STIPULATION TO CHANGE TILE CASE CAPTION
3/8/2017: STIPULATION AND ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT
3/21/2017: NOTICE OF TAKING HEARING OFF CALENDAR
4/26/2017: PLAINTIFF GREGORY ECONN'S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT; ETC.
6/9/2017: DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT
6/15/2017: PLAINTIFF GREGORY ECONN'S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT; ETC
Hearingat 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearingat 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery ResponsesRead MoreRead Less
DocketReply (IN OPPOSITION TO DEFENDANTS' MOTION TO COMPEL); Filed by Gregory Econn (Plaintiff)Read MoreRead Less
DocketStipulation and Order ([PROPOSED] REGARDING DEFENDANT?S MOTION TO COMPEL); Filed by ADSH Investments II, Inc. (Defendant); ADSH Investments I, Inc. (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held - ContinuedRead MoreRead Less
Docketat 08:30 AM in Department 37; Hearing on Motion for Leave to Amend (Answer) - HeldRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro TemporeRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Leave to Amend Answer; Hearing on Motio...)); Filed by ClerkRead MoreRead Less
DocketNotice of Ruling (ON DEFENDANTS' MOTION FOR LEAVE TO AMEND ANSWER TO ADD AFFIRMATIVE DEFENSE AND MOTION TO COMPEL); Filed by Gregory Econn (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by Gregory Econn (Plaintiff)Read MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketReceipt-Depository; Filed by Gregory Econn (Plaintiff)Read MoreRead Less
DocketProof-Service/SummonsRead MoreRead Less
DocketPROOF OF SERVICE SUMMONS & COMPLAINTRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketCOMPLAINT FOR: 1. BREACH OF WRITTEN CONTRACT; ETCRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Gregory Econn (Plaintiff)Read MoreRead Less
Case Number: BC601530 Hearing Date: February 28, 2020 Dept: 37
HEARING DATE: February 28, 2020
CASE NUMBER: BC601530
CASE NAME: Gregory Econn v. ADSH Investments II, Inc., et al.
MOVING PARTY: Defendant, Adam DeVone
OPPOSING PARTY: Plaintiff, Gregory Econn
TRIAL DATE: March 11, 2020
PROOF OF SERVICE: OK
MOTION: Defendant’s Motion to Quash Service of Second Amended Summons
OPPOSITION: February 24, 2020 [late by 5 calendar days according to hearing date of 2/28/20]
REPLY: None as of February 24, 2020
TENTATIVE: DeVone’s motion to quash is DENIED. On the court’s own motion the claims against DeVone are severed from the claims against the remaining defendants. DeVone is to provide notice.
MOTION: Defendant’s Demurrer to the Second Amended Complaint
OPPOSITION: February 24, 2020 [late by 5 calendar days according to hearing date of 2/28/20]
REPLY: None as of February 24, 2020
TENTATIVE: DeVone’s demurrer is overruled. Plaintiff is to give notice.
The following background is common to both motions before the court and will only be stated once.
This case arises in connection with a referral agreement (the “Referral Agreement”) that Defendants ADSH Investments II, Inc. (f/k/a Benefits Exchange Alliance, Inc. (“BXA”) and PenBen Financial Services, Inc. (“PenBen”)) and ADSD Investments I, Inc. (f/k/a Pension & Benefits Insurance Services, Inc.) (collectively “Defendants”) allegedly entered into with Plaintiff Gregory Econn (“Econn”) on December 6, 2011. Plaintiff alleges that Defendants agreed to pay Plaintiff 40% of commission dollars they received from any account he referred to them, on an ongoing basis. According to Plaintiff, he referred JRK Property Holdings (“JRK”) and Marcus & Millichap (“M&M”) to Defendants but has not been paid the amounts owed to him under the Referral Agreement.
In the Third Amended Complaint (“TAC”), Plaintiff alleges 12 causes of action for: (1) breach of written contract, (2) accounting, (3) fraudulent concealment, (4) intentional misrepresentation, (5) negligent misrepresentation, (6) promissory fraud, (7) breach of fiduciary duty, (8) declaratory relief, (9) alter ego liability, (10) money had and received, (11) unjust enrichment, and (12) breach of implied-in-fact contract.
On January 31, 2020, approximately six weeks before trial, Plaintiff filed doe amendment naming Defendant, Adam DeVone (“DeVone”) as doe 2. Plaintiff filed a proof of service on February 7, 2020 indicating that service was effectuated on DeVone on February 5, 2020 by email to DeVone’s counsel by agreement.
DeVone now moves to quash service of the Summons and TAC. DeVone also demurrers to the TAC on the grounds that it fails to allege facts sufficient to state a cause of action against him. The oppositions were filed late to both motions Consequently the moving party has not had a fair opportunity to file a reply.
MOTION TO QUASH SERVICE OF SUMMONS AND DOE AMENDMENT
The addition of a Doe defendant is governed by Code of Civil Procedure section 474, which provides:
When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.
“When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371.) A motion entitled a “motion to quash” which seeks to present the issue of whether a plaintiff “could avail himself of the Doe amendment procedure authorized by section 474 and bring the Doe Defendants into the case” is a procedurally proper motion. (A.N., a Minor v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1064.)
DeVone contends that service of the summons and TAC should be quashed on two grounds: (1) the doe amendment naming DeVone is “futile” because the TAC fails to allege facts sufficient to state a cause of action, and (2) Plaintiff’s delay in bringing the doe amendment is unreasonable and prejudicial to DeVone.
Doe Amendment “Futile”
DeVone contends that the doe amendment should be quashed as “futile” because the TAC fails to sufficiently allege a claim against DeVone based on an alter ego theory. (Motion, 6-7, 8-11.) DeVone further contends that the TAC fails to allege facts sufficient to state a cause of action against him on an alter ego theory because the TAC does not allege that he and the entity defendants acted with a “unity of interest” under the standard articulated in Sonora Diamond Corporation v. Superior Court (2000) 83 Cal.App.4th 523. (Motion, 8-11.) However, DeVone fails to point to any case law or authority for the proposition that a doe amendment may be quashed because the underlying complaint fails to allege facts sufficient to state a cause of action.
Similarly, Plaintiff contends in opposition that DeVone’s contention fails because a motion to quash based on “futility” is not proper. (Opposition, 9-10.) The court agrees. “A motion to quash service challenges only the lack of jurisdiction over the person and, when ruling on such a motion, the trial court is not permitted to determine the merits of the complaint.” (McClatchy v. Coblentz, Patch Duffy & Bass, LLP (2016) 247 Cal.App.4th 368.)
Accordingly, the court does not grant DeVone’s motion to quash on this basis.
Doe Amendment Unreasonable Delay
Unreasonable delay in filing a doe amendment after discovering a doe defendant’s identity may bar the plaintiff from naming the doe defendant if the delay is prejudicial. (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1.) In order for a defendant to prevail on a motion to quash doe amendment based on unreasonable delay, defendant must make a showing of specific prejudice. (Id. at 9.; A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1068 [holding that doe amendments filed less than one month before trial were unreasonably delayed when evidence suggests that Plaintiff could have learned identity of doe defendants through prior depositions several months before filing doe amendments.])
DeVone contends that the doe amendment should be quashed because Plaintiff unreasonably delayed in bringing the amendment. (Motion, 7-8, 11-13.) DeVone contends that Plaintiff unreasonably delayed in bringing the doe amendment because it was brought less than six weeks before trial in a matter that has been pending for approximately four and a half years. (Motion, 11-13.) DeVone further contends that Plaintiff’s delay in bringing the doe amendment is unreasonable because Plaintiff has known of DeVone’s identity as an owner of PenBen and BXA since the commencement of this action, or at least since April 2017 when Plaintiff began pursuing an alter ego theory of liability against PenBen and BXA. (Motion, 11-12.) Finally, DeVone contends that he would be heavily prejudiced by the doe amendment brought just before trial because he does not have time to bring a motion for summary judgment. (Motion, 13.)
Plaintiff contends that there has been no unreasonable delay in naming DeVone by doe amendment because Plaintiff had “no reason to believe that the Entity Defendants were not active companies with assets” until the last session of DeVone’s deposition. (Opposition, 14.) Plaintiffs also contend that the A.N. case is not applicable to DeVone’s motion as A.N. dealt with a Plaintiff who had learned the names of at least two of the doe defendants he sought to name through deposition several months before he filed the doe amendments. (Opposition, 15.) Finally, Plaintiff contends that DeVone has not demonstrated that he would be specifically prejudiced by the delay, if any, of filing the doe amendment because DeVone “need not take any discovery” on the alter ego allegations and already possesses any information he may need to defend these allegations himself or through one of the entity Defendants. (Opposition, 16.)
Plaintiff also submits the declaration of his attorney, Lori Brody (“Brody”) in support of his argument that the doe amendment was not unreasonably delayed. Brody attests that DeVone’s deposition was first taken on September 22, 2016. (Brody Decl. ¶ 2.) However, Brody attests that in late 2018 and due to the unexpected death of an attorney working on the matter, Plaintiff requested a continuance on the hearing on the entity Defendants’ motion for summary judgment, to which defense counsel agreed on the condition that trial would be continued. (Brody Decl. ¶ 5.) Brody attests that pursuant to this agreement, the court on October 25, 2018 ordered a continuance of trial until March 11, 2020. (Brody Decl. ¶ 6.) Further, Brody attests that although the depositions of DeVone and other witnesses were noticed in January 2019, they were not taken until December 2019 by agreement until “certain outstanding discovery disputes were resolved and certain documents produced.” (Id.) Finally, according to Brody, it was not until DeVone, Robert Roof and Sam Chung’s depositions were completed in December 2019 that Plaintiff learned that the entity Defendants did not do business and had no assets. (Brody Decl. ¶¶ 12-13.) Thereafter, Brody attests that Plaintiff decided to name DeVone as a doe defendant. (Brody Decl. ¶ 14.)
Given the foregoing, the court agrees with Plaintiff that DeVone has not demonstrated that Plaintiff’s delay in filing a doe amendment was per say unreasonable. Although DeVone contends that Plaintiff should have known of his identity since at least April 2017 when Plaintiff began pursuing an alter ego theory of liability against PenBen and BXA, DeVone has provided no further explanation for this contention other than his statements to this effect. Further, Plaintiff has submitted the Brody Declaration in opposition, which presents a reasonable explanation for why the doe amendment was filed only after the December 2019 deposition of DeVone and other witnesses.
Nonetheless, trial in this matter is presently set to begin on March 11, 2020. As a general principle, “[I]t does not require speculation to recognize that a party who is drawn into litigation on the eve of trial will face difficulties in preparing a defense in such a short order.” (A.N., supra, 171 Cal.App.4th at 1068.) Further, pursuant to Code of Civil Procedure, section 1048, subdivision (b), “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).)
Accordingly, pursuant to section 1048, the court severs Plaintiff’s action against DeVone from Plaintiff’s action against the remaining defendants.
DeVone’s motion to quash is DENIED. All claims against DeVone are severed from the remaining defendants. DeVone is to provide notice.
A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)
The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
DeVone contends that each cause of action in the TAC fails to allege facts sufficient to state a cause of action against him because the doe amendment fails to allege facts sufficient to plead liability under an alter ego theory. (Dem., 5-8.) However, DeVone fails to demonstrate how the TAC’s only theory of liability against him is based on alter ego liability.
The court has reviewed Plaintiff’s TAC and notes that each of the twelve causes of action alleged within is alleged against each of the defendants, including DeVone. Further, the TAC includes several specific factual allegations about DeVone’s liability to Plaintiff. Specifically, the TAC alleges that DeVone is a “principal and chairman of BXA” and that in 2013, DeVone represented to Plaintiff that the JRK Account cost BXA $100,000 per month. (TAC ¶¶ 2, 17.) The TAC further alleges that DeVone made additional representations to Plaintiff in 2014 regarding the JRK account. (TAC ¶ 19.) The TAC further alleges on information and believe that DeVone is the sole owner of PenBen as well as an owner of BXA. (TAC ¶ 94.) Finally, the TAC specifically alleges that there was a “unity of interest and ownership” between BXA and PenBen. (Id.)
Accordingly, it is unclear how DeVone comes to the conclusion that the TAC contains “no allegations that could even arguably support a claim that Adam DeVone is the alter ego of either BXA or PenBen.” (Dem., 6.) Instead, as discussed above, the TAC contains several allegations which could arguably support a claim that DeVone is the alter ego of either BXA or PenBen, or that DeVone is liable to Plaintiff individually under any of the other causes of action. By way of example, the TAC’s cause of action for fraudulent concealment need not be alleged against DeVone only under an alter ego theory, but may be alleged against DeVone individually.
As such, liberally construing the allegations of the TAC, the court finds that the TAC sufficiently alleges a theory of liability against DeVone and does not fail for insufficiently alleging liability against DeVone under an alter ego theory. Because DeVone’s demurrer does not challenge any of the causes of action individually, it is therefore overruled.
DeVone’s demurrer is overruled. Plaintiff is to give notice.
 DeVone submits the declaration of Jonathan A. Sorkowitz (“Sorkowitz”) to demonstrate that he has met his statutory meet and confer obligations prior to bringing the instant demurrer pursuant to Code of Civil Procedure section 430.41. Sorkowitz attests that he met and conferred telephonically with Plaintiff’s counsel on February 6, 2020 regarding Plaintiff’s grounds for naming DeVone under a doe amendment. (Sorkowitz Decl. ¶ 6.) As DeVone demurrers to each cause of action of the TAC on the grounds that the doe amendment is generally improper, the court finds that the Sorkowitz Declaration sufficiently establishes that DeVone has met and confrered pursuant to Code of Civil Procedure section 430.41.
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