********
01/27/2020
Other
Contract - Other Contract
Los Angeles, California
RANDOLPH M. HAMMOCK
THERESA M. TRABER
ATTEUKENIAN PAUL DBA POL ATTEU
POL' ATTEU COUTURE AN UNKNOWN BUSINESS ENTITY
POL' ATTEU INC. A CALIFORNIA CORPORATION
SIMPSON PATRICK
BLAKE TRUST A TRUST
BLAKE BARON MICHAEL AKA MICHAEL IAN BLAKEY AKA LORD MICHAEL BLAKEY AKA BARON MICHAEL BLAKEY AKA MICHAEL BLAKE AKA MICHAEL IAN BLAKEY AKA LORD MICHAEL BLAKEY AKA BARON MICHAEL BLAKEY AKA MICHAEL BLAKE
THE BLAKE REVOCABLE TRUST A TRUST
MISS WORLD AMERICA LLC A CALIFORNIA LIMITED LIABILITY COMPANY
MICHAEL BLAKEY TRUST A TRUST
THE MICHAEL BLAKEY REVOCABLE TRUST A TRUST
ELECTRA STAR MANAGEMENT LLC A CALIFORNIA LIMITED LIABILITY COMPANY
ELECTRA STAR MANAGEMENT LLC A CALIFORNIA LIMITED LIABILITY COMPANY DBA MISS WORLD AMERICA
GANDARA ROBERT
ELECTRA STAR MANAGEMENT LLC A CALIFORNIA LIMITED LIABILITY COMPANY DBA MISS WORLD AMERICA
KEOSIAN HAROUT
KEOSIAN HAROUT GREG
CAPLAN BENJAMIN
KEUSSEYAN EILEEN
5/3/2021: Request for Dismissal
3/19/2021: Amended Complaint - AMENDED COMPLAINT (3RD)
7/30/2020: Order - RULING-DEMURRER TO COMPLAINT
8/3/2020: Notice of Posting of Jury Fees
8/28/2020: Amended Complaint - AMENDED COMPLAINT (1ST)
10/16/2020: Demurrer - without Motion to Strike
10/27/2020: Opposition - OPPOSITION = TO DEFENDANTS DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT
11/2/2020: Reply - REPLY DEFENDANTS REPLY IN SUPPORT OF DEMURRER TO THE FIRST AMENDED COMPLAINT OF PLAINTIFF PAUL ATTEUKENIAN
11/6/2020: Amendment to Complaint (Fictitious/Incorrect Name)
11/9/2020: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)
11/9/2020: Order - RULING-DEMURRER TO FIRST AMENDED COMPLAINT
11/12/2020: Notice of Ruling
11/25/2020: Proof of Service by Substituted Service
12/14/2020: Amended Complaint - AMENDED COMPLAINT (2ND)
12/22/2020: Notice - NOTICE OF UNAVAILABILITY OF COUNSEL
12/24/2020: Cross-Complaint
12/28/2020: Summons - SUMMONS ON CROSS COMPLAINT
1/15/2021: Demurrer - without Motion to Strike
Docketat 09:30 AM in Department 47, Theresa M. Traber, Presiding; Jury Trial - Not Held - Vacated by Court
[-] Read LessDocketat 09:30 AM in Department 47, Theresa M. Traber, Presiding; Final Status Conference - Not Held - Vacated by Court
[-] Read LessDocketat 08:30 AM in Department 47, Theresa M. Traber, Presiding; Post-Mediation Status Conference - Not Held - Vacated by Court
[-] Read LessDocketRequest for Dismissal; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketAnswer; Filed by Miss World America, LLC, A California Limited Liability Company (Defendant); Baron Michael Blake (Defendant); Electra Star Management, LLC, a California Limited Liability Company (Defendant) et al.
[-] Read LessDocketAnswer; Filed by Miss World America, LLC, A California Limited Liability Company (Defendant); Baron Michael Blake (Defendant); Electra Star Management, LLC, a California Limited Liability Company (Defendant) et al.
[-] Read LessDocketAnswer; Filed by Paul Atteukenian (Cross-Defendant); Pol' Atteu, Inc., a California Corporation (Cross-Defendant); Pol' Atteu Couture, an unknown business entity (Cross-Defendant) et al.
[-] Read LessDocketAmended Complaint ( (3rd)); Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketat 08:30 AM in Department 47, Theresa M. Traber, Presiding; Hearing on Demurrer - without Motion to Strike - Held
[-] Read LessDocketNotice of Ruling; Filed by Electra Star Management, LLC, a California Limited Liability Company (Defendant)
[-] Read LessDocketProof of Service by Substituted Service; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketProof of Service by Substituted Service; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketProof of Service by Substituted Service; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketProof of Service by Substituted Service; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketProof of Service by Substituted Service; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketNotice of Case Management Conference; Filed by Clerk
[-] Read LessDocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk
[-] Read LessDocketCivil Case Cover Sheet; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketSummons (on Complaint); Filed by Paul Atteukenian (Plaintiff)
[-] Read LessDocketComplaint; Filed by Paul Atteukenian (Plaintiff)
[-] Read LessCase Number: *******3296 Hearing Date: February 26, 2021 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: February 26, 2021 TRIAL DATE: November 29, 2021
CASE: Paul Atteukenian v. Miss World America, LLC, et al
CASE NO.: *******3296
DEMURRER TO THE SECOND COMPLAINT OF PLAINTIFF PAUL ATTEUKENIAN
MOVING PARTY: Defendants Baron Michael Blake, Electra Star Management, LLC, Miss World America, LLC, and Robert Gandara
RESPONDING PARTY(S): Plaintiff
PROOF OF SERVICE:
· Correct Address: Yes.
· 16/21 (CCP ; 1005(b)): (1)-(2) OK. Served electronically on January 15, 2021 for a hearing date of February 26, 2021.
CASE HISTORY:
· 01/27/2020: Complaint filed.
· 08/28/2020: First amended complaint filed.
· 12/14/2020: Second amended complaint filed.
· 12/24/2020: Cross-complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff is a fashion designer with his own reality television series, “Gown and Out in Beverly Hills.” He alleges that he was to be the exclusive evening gown and dress partner for the Miss World America pageant and the Miss Teen World America pageant and that the winner of Miss World 2019 would wear his gown, the creation of which would also be featured in a documentary. He designed four gowns pursuant to this alleged contract, but Defendants forbade the pageant winners from wearing them. Defendants also breached agreements with Plaintiff in other ways, such as forcing him to judge the Miss Teen World America pageant at the last minute.
Defendants demur to the second amended complaint.
TENTATIVE RULING:
Defendants’ demurrer is SUSTAINED as to the first cause of action with 20 days leave to amend. The demurrer is OVERRULED as to the second cause of action. The demurrer is SUSTAINED without leave to amend as to the third cause of action.
Moving party to give notice, unless waived.
DISCUSSION:
Demurrer
Meet and Confer
The declaration of attorney Benjamin L. Caplan reflects that the meet and confer requirement was satisfied. (CCP ; 430.41.)
First Cause of Action (Breach of Contract)
Only Defendant Robert Gandara demurs to the first cause of action.
To allege breach of written contract, Plaintiff must allege the existence of a written agreement with Defendants, Defendants’ breach, and Plaintiffs resulting damages. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) There is no requirement to attach a copy of the agreement to the complaint, as the terms of the contract may be “set out verbatim in the body of the complaint.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 458-459.) Recent case law is even more permissive, allowing a plaintiff to plead the legal effect of a written contract rather than its precise language. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)
Here, as in the complaint and first amended complaint, although Plaintiff alleges the written Memorandum of Understanding (“MOU”) was between Plaintiff and “Defendants” (SAC ¶¶ 16, 71), the MOU attached to the second amended complaint is signed only by Plaintiff and Robert Gandara whose signature indicates he is the Chief Operating Officer of Miss World America. (SAC, Exh. A.) The MOU identifies the parties as Miss World America and Paul Atteu Couture. (Ibid.) “Exhibits attached to the complaint take precedence to the extent they contradict allegations in the complaint.” (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 943.)
Plaintiff contends Defendant Robert Gandara is an agent for an undisclosed principal and is therefore liable on the contract. (Opp. at 10-12.) However, as argued by Defendants in reply, Plaintiff does not allege sufficient facts in the second amended complaint to establish this theory. Plaintiff does not allege that he was unaware of the identity of the actual contracting party or that he was unaware that Gardara was serving as an agent for that entity. (Carlesimo v. Schwebel (1948) 87 Cal.App.2d 482, 486 (“where directors or officers of a corporation contract with a third person who is ignorant of the existence of the corporation and to whom no disclosure of the existence of the corporation is made, such director or officer is personally liable on such contract.”); G. W. Andersen Construction Co. v. Mars Sales (1985) 164 Cal.App.3d 326, 333 (“The fact of agency and the identity of the principal may both be disclosed to or known by the other party other than from the contract itself. But as noted in this case, plaintiff did not know the name or corporate status of the principal.”).)
Accordingly, the second amended complaint fails to allege sufficient facts to establish that Defendant Robert Gandara should be held individually liable on the contract. The demurrer by Robert Gandara is SUSTAINED as to the first cause of action with 20 days’ leave to amend.
Second Cause of Action (Fraud and Deceit)
Defendants argue that the fraud and deceit cause of action fails to meet the heightened pleading standard for fraud. The Court has twice sustained Defendants’ demurrers to the fraud claim on this basis.
“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, italics omitted.)
As stated by the court in West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780:
Fraud must be pleaded with specificity rather than with “‘general and conclusory allegations.’” . . . The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. . . .
We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. . . . The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘“to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.”’”
(West, supra 214 Cal.App.4th at 793 [Citations omitted].)
The second amended complaint alleges the following representations of fact:
83. Prior to signing the MOU, Defendant Blakey, Defendant Gandara and Katya, informed Plaintiff that if he designed a line specifically for MWA, they would put it on their website.
84. Prior to signing the MOU, Defendant Blakey and Defendant Gandara, made representations to Plaintiff about a 5 year contract term and Plaintiff to be the sole and specific designer for MWA.
85. Prior to signing the MOU, Defendant Blakey, Defendant Gandara, and Katya, represented to Plaintiff that they would be submitting Plaintiff for the designer of the year award. Plaintiff had never been considered for this prestigious award, which specifically attracted him in agreeing to the terms of the MOU.
. . .
87. Prior to signing the MOU, Defendant Blakey, Defendant Gandara and Katya represented to Plaintiff that Plaintiff s gown would be the “reveal” of the documentary, hereinabove discussed, and would be worn by the Miss World America winner on the Miss World 2019 international pageant stage and in the Designer of the Year contest, in December of 2019.
Each of these representations were allegedly false when made. (SAC ¶ 89.) Defendants intended “to defraud and deceive Plaintiff into entering into the MOU, and to profit off of Plaintiff s celebrity status and couturier talent.” (SAC ¶ 90.) “Plaintiff was ignorant of their falsity and could not, in the exercise of reasonable diligence, have discovered the truth.” (SAC ¶ 91.) Plaintiff entered into the MOU and suffered harm in the amount of $400,000 as a result of the misrepresentations. Defendants Blakey and Gandara are the officers and managers of Miss World America and Miss World America, LLC. (SAC ¶ 5, 8.) Defendants in their demurrer note that Electra Star Management, LLC uses the d/b/a Miss World America. (Dem. at 1.)
While Defendants argue that Plaintiff does not allege when the misrepresentations at issue were made, “prior to signing the MOU” is sufficient to satisfy Plaintiff’s pleading burden on this issue. (People ex rel. Sepulveda v. Highland Fed. Savings & Loan (1993) 14 Cal.App.4th 1692, 1716 (“As to other specific dates and details, we point out such matters are properly addressed during discovery, not on demurrer.”).)
The allegations in the SAC now meet the particularity requirements needed to state a cause of action for fraud and deceit.
The demurrer is OVERRULED as to the second cause of action for fraud and deceit.
Third Cause of Action (Intentional Interference with Prospective Economic Advantage)
The elements of intentional interference with prospective economic advantage are:
(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.
(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) In addition, a “plaintiff seeking to recover damages for interference with prospective economic advantage must plead and prove as part of its case-in-chief that the defendant's conduct was ‘wrongful by some legal measure other than the fact of interference itself.’” (Ibid., citation omitted.) In other words, a plaintiff must allege “intentional wrongful acts on the part of the defendant designed to disrupt the relationship.” (Id. at 1154.) “An act is not independently wrongful merely because defendant acted with an improper motive.” (Id. at 1158.) Rather “an act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Id. at 1159.)
Plaintiff’s SAC includes allegations about of economic opportunities or advantages he had with various individuals that would have resulted in Plaintiff being the exclusive gown and dress partner for other pageants and having the opportunity to design and sew gowns for pageant contestants and directors. (SAC ¶¶ 102-103.) While Plaintiff asserts that alleged misconduct by Defendants interfered with those economic opportunities, he does not assert that any defendant had knowledge of these economic prospects, which is a required element for an intentional interference claim. (Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1153.) As a result, the Court sustains the demurrer on this basis.
To the extent that Plaintiff alleges that the named defendants interfered with his contract with Defendants Miss World America and Paul Atteu Couture, none of the named defendants can be held liable for intentional interference with the MOU. Only a stranger to a contract may be sued for intentionally interfering with the performance of the contract. (Mintz v. Blue Cross of California (2009) 172 Cal. App. 4th 1594, 1603.) Further, “it is settled that ‘corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation's contract.’” (Id., at p. 1604 [Citation omitted].) All defendants not named as parties to the MOU are alleged to be agents or employees of the defendants who contracted with Plaintiff.
Plaintiff’s allegations of Defendants’ independently wrongful conduct include the following:
49. Plaintiff thereafter learned that Defendant Blakey and Gandera, knowingly and intentionally, intended to disrupt prospective economic relations for Plaintiff by misrepresentations and statements to the Pageant contestants, directors and contestants’ guardians, as well as on social media posts, that Plaintiff has produced “knock off” dresses and that Plaintiff had overpriced the retail value of both the opening number dresses and the custom designed gowns for the winner.
99. Defendant Blakey, Defendant Gandara and MWA representatives engaged in wrongful conducts, by means of intentional misrepresentations and fraudulent statements that Plaintiff had not complied with the terms of the MOU, that Plaintiff had produced “knock off” dresses, and that Plaintiff had overpriced the retail value of both the opening number dresses and the custom designed gowns for the winner.
100. Defendant Blakey, Defendant Gandara and MWA representatives further engaged in wrongful conduct by coercing the Pageant contestants and winners into starting a smear campaign against Plaintiff both on social media and in person, including Defendants’, and DOES 1 through 100, and each of their, threats of removing the winners’ crowns, titles and entitlements if they wore Plaintiff s gowns, all with the intention of breaching the MOU and disrupting Plaintiff s prospective economic relations.
The Court finds that Plaintiff has provided sufficient detail to demonstrate wrongful conduct by Defendants Blakey and Gandera, as they are alleged to have made false statements to key players in the pageant field – directors, contestants and their guardians – about the quality and originality of his fashion designs. Defendants argue that Plaintiff has not alleged that the statements made were false, but the Court disagrees. The SAC asserts that Defendants’ statements accusing Plaintiff of creating overpriced knockoffs were “intentional misrepresentations and fraudulent statements.” (SAC ¶¶ 49, 99.) Reading these allegations with the liberality that is required in evaluating a demurrer, the Court reasonably construes these allegations to charge Defendants with making false and defamatory statements that had a deleterious impact on his professional prospects and reputation. Thus, the Court overrules the demurrer by Defendants Blakey and Gandera to the extent that they question the specificity of Plaintiff’s allegations of wrongful conduct. Because the SAC is lacking in similar allegations as to the other defendants, the Court sustains these defendants’ demurrer on this basis.
The demurrer is SUSTAINED as to the third cause of action for intentional interference with prospective economic advantage. The Court grants leave to amend as to the claims against Defendants Blakey and Gandera allowing Plaintiff an opportunity to include allegations that these defendants were aware of Plaintiff’s future economic prospects when they made allegedly defamatory statements that interfered with those prospects. The Court denies leave to amend as to the other defendants finding that Plaintiff has had sufficient opportunity to amend the complaint to properly assert this cause of action as to those defendants and has failed to do so. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)
Conclusion
Defendants’ demurrer is SUSTAINED as to the first cause of action with 20 days’ leave to amend. The demurrer is OVERRULED as to the second cause of action. The demurrer to the third cause of action is SUSTAINED with leave to amend as against Defendants Blakey and Gandera, and without leave to amend as to the remaining defendants.
Moving parties are ordered to give notice, unless waived.
IT IS SO ORDERED.
Dated: February 26, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Case Number: *******3296 Hearing Date: February 17, 2021 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: February 17, 2021 TRIAL DATE: November 29, 2021
CASE: Paul Atteukenian, individually and dba Pol Atteu v. Miss World America, LLC, et al.
CASE NO.: *******3296
DEMURRER TO CROSS-COMPLAINT AND PURPORTED MOTION TO STRIKE
MOVING PARTY: Cross-Defendants Pol’ Atteu Couture, Pol’ Atteu, Inc., Paul Atteukenian aka Pol’ Atteu, and Patrik Simpson
RESPONDING PARTY(S): Cross-Complainant Electra Star Management, LLC dba Miss World America
PROOF OF SERVICE:
CASE HISTORY:
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff is a fashion designer with his own reality television series, “Gown and Out in Beverly Hills.” He alleges that he was to be the exclusive evening gown and dress partner for the Miss World America pageant and the Miss Teen World America pageant and that the winner of Miss World 2019 would wear his gown, the creation of which would also be featured in a documentary. He designed four gowns pursuant to this alleged contract, but Defendants forbade the pageant winners from wearing them. Defendants also breached agreements with Plaintiff in other ways, such as forcing him to judge the Miss Teen World America pageant at the last minute.
In a cross-complaint, Electra Star Management, LLC alleges that it had to terminate its contract with Pol’ Atteu Couture after it supplied knock-off dresses for the pageant, and therefore it did not receive the benefit of the four gowns Pol’ Atteu had agreed to produce.
Cross-Defendants demur to the cross-complaint. They also move to strike the prayer for punitive damages as part of the same document (the demurrer and motion to strike are combined).
TENTATIVE RULING:
Cross-Defendants Pol’ Atteu Couture, Pol’ Atteu, Inc., Paul Atteukenian aka Pol’ Atteu, and Patrik Simpson’s demurrer to Electra Star Management, LLC’s cross-complaint is OVERRULED as to the first through fifth causes of action. The demurrer is MOOT as to the sixth cause of action.
Cross-Defendants’ purported motion to strike is DENIED.
DISCUSSION:
Demurrer
Meet and Confer
The Declaration of Attorney Eileen Keusseyan reflects that the meet and confer requirement set forth in CCP ; 430.41 was satisfied.
Analysis
First Cause of Action (Breach of Contract)
Cross-Defendants demur to the first cause of action for breach of contract on the ground that there is no written or oral contract between Cross-Defendants and Cross-Complainant. (CCP ; 430.10(e).)
To allege breach of written contract, Cross-Complainant must allege the existence of a written agreement with Cross-Defendants, Cross-Defendants’ breach, and Cross-Complainant’s resulting damages. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) There is no requirement to attach a copy of the agreement to the complaint, as the terms of the contract may be “set out verbatim in the body of the complaint.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 458-459.) More recent case law is even more permissive, allowing a plaintiff to plead the legal effect of a written contract rather than its precise language. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) But “[e]xhibits attached to the complaint take precedence to the extent they contradict allegations in the complaint.” (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 943.)
Here, Cross-Defendants argue that they did not enter into any contract with Cross-Complainant because the Memorandum of Understanding (“MOU”) attached to the cross-complaint was with Miss World America, not Electra Star Management, and Cross-Complainant did not file a fictitious business name statement for the name “Miss World America” until on or about December 19, 2019. (X-C ¶ 3.)
“No person transacting business under a fictitious business name contrary to the provisions of this chapter . . . may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required by this chapter.” (Bus. & Prof. Code ; 17918, bold emphasis added.) This inability to “maintain” an action is the “single penalty for failure to comply with the filing requirements.” (American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 562.) This does not mean, however, that an action cannot be commenced and later supported by the filing of the required business name statement. The “statute only prohibits maintenance of the suit; it does not bar commencement of the action.” (American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 562.) It follows that the statute does not bar commencement of the action after the required business name statement has been filed, even if it was not filed before entering into the contract at issue. Indeed, “compliance . . . may be shown at any time before trial.” (Kadota Fig Ass'n of Producers v. Case-Swayne Co. (1946) 73 Cal.App.2d 796, 800.)
Accordingly, the demurrer is OVERRULED as to the first cause of action for breach of contract.
Second Cause of Action (Misrepresentation and Fraud in the Inducement)
Cross- Defendants demur to the second cause of action for fraud on the ground that it fails to state facts sufficient to constitute a cause of action against them because (1) Cross-Complainant does not identify the purportedly false statements on which it is based, (2) the cause of action does not meet the heightened particularity requirements for fraud, and (3) there are insufficient allegations that Cross-Defendants made any false statements that were justifiably relied on by Cross-Defendant. (CCP ; 430.10(e).)
“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, italics omitted.)
Fraud must be pleaded with specificity rather than with “‘general and conclusory allegations.’” . . . The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. . . .
We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. . . . The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ’ ”
(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793, citations omitted.)
As the basis for this cause of action, Cross-Complainant alleges that, “[a]s stated above, Cross-Defendants represented that PAC would provide MWA with 102 opening number dresses which would be designed by Atteukenian and be part of PAC’s upcoming fashion line, and would have a total retail value of $198,900.00.” (X-C ¶ 51.) Although, in referring to the paragraphs “above,” Cross-Complainant uses the “disfavored”[1] practice of incorporating the previous paragraphs by reference into this cause of action, Cross-Complainant alleges representations by both Atteukenian and Simpson with sufficient specificity in the earlier paragraphs. (E.g., X-C ¶¶ 13, 14, 17, 18, 19, 22.) Cross-Complainant also alleges the individual Cross-Defendants’ ability to speak on behalf of entity Cross-Defendants Pol’ Atteu Couture and Pol’ Atteu, Inc. by alleging that they are owners and the officers or principals of Pol’ Atteu Couture and that Pol’ Atteu, Inc. may be the same entity. (X-C ¶¶ 5-7.) These allegations are sufficient as to the entity Cross-Defendants. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)
These allegations are sufficient to identify the alleged misrepresentations on which Cross-Complainant justifiably relied. Accordingly, the demurrer is OVERRULED as to the second cause of action.
Third Cause of Action (Intentional Interference with Prospective Economic Relations)
Cross-Defendants demur to this cause of action on the ground that Cross-Complainant has not alleged an underlying, enforceable agreement, breach of that agreement, or knowledge of any such agreement. (CCP ; 430.10(e).)
The elements of intentional interference with prospective economic advantage are:
(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.
(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153, bold emphasis added.) In addition, a “plaintiff seeking to recover damages for interference with prospective economic advantage must plead and prove as part of its case-in-chief that the defendant's conduct was ‘wrongful by some legal measure other than the fact of interference itself.’” (Ibid., citation omitted.) In other words, a plaintiff must allege “intentional wrongful acts on the part of the defendant designed to disrupt the relationship.” (Id. at 1154.) “An act is not independently wrongful merely because defendant acted with an improper motive.” (Id. at 1158.)
Here, Cross-Complainant alleges (1) an economic relationship between it and Boyd Gaming Corporation, with the probability of future economic benefit to the plaintiff; (2) Cross-Defendants Atteukenian and Simpson’s knowledge of the relationship; (3) intentional acts by Atteukenian and Simpson designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (X-C ¶¶ 61-65.) These allegations are sufficient.
Moreover, Cross-Complainant has sufficiently alleged independently wrongful conduct by alleging that Atteukenian and Simpson “engaged in extreme verbal abuse of the employees of the Orleans Hotel, including screaming insults and profanities at said employees,” causing hotel management to dispatch security and threaten to cancel the event. (X-C ¶ 63.)
Accordingly, the demurrer is OVERRULED as to the third cause of action for intentional interference with prospective economic relations.
Fourth Cause of Action (Negligent Interference with Prospective Economic Relations)
Cross-Defendants make no independent argument as to this cause of action.
Accordingly, for the reasons discussed in connection with the third cause of action, the demurrer is OVERRULED as to the fourth cause of action.
Fifth Cause of Action (Business & Professions Code ; 17200)
Cross-Defendants demur to the fifth cause of action on the ground that Cross-Complainant has not alleged sufficient facts to establish unfair competition. (CCP ; 430.10(e).)
California Business & Professions Code ; 17200 prohibits any “unlawful, unfair or fraudulent business act or practice.” Ultimately, “an ‘unfair’ business practice occurs when that practice ‘offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Davis v. Ford Motor Credit Co., LLC (2009) 179 Cal.App.4th 581, 585.)
Cross-Complainant is attempting to “borrow” the law governing fraud, at a minimum, as the basis for this claim, by incorporating its previous allegations by reference. (X-C ¶ 74.) Where a plaintiff cannot state a claim under the “borrowed” law, it cannot state a UCL claim either. (Ingels v. Westwood One Broad. Servs., Inc. (2005) 129 Cal.App.4th 1050, 1060 [“A defendant cannot be liable under ; 17200 for committing unlawful business practices without having violated another law.”].) Here, however, Cross-Defendants’ demurrer was overruled as to Cross-Complainant’s fraud cause of action and others.
Accordingly, the demurrer is OVERRULED as to the fifth cause of action for unfair competition.
Sixth Cause of Action (Accounting)
Cross-Complainant has agreed to dismiss the sixth cause of action for an accounting without prejudice.
Accordingly, the demurrer to the sixth cause of action is MOOT.
Purported Motion to Strike
Cross-Defendants purport to move to strike Cross-Complainant’s prayer for punitive damages, although they did not file a separate motion to strike.
Cross-Complainant is correct that “[m]otions to strike and demurrers should be filed as separate documents.” (Oppo., at p. 10.) To be considered, any future motions to strike that Cross-Defendants may intend to file must be separate from any demurrer to be considered.
Nevertheless, here, Cross-Defendants’ reservation, while specifying only “1” motion, does indicate that they paid the $120 fee for a demurrer with a motion to strike. The Declaration of Attorney Eileen Keusseyan also indicates that the parties met and conferred as to the motion to strike, as required by CCP ; 435.5. Cross-Defendants’ notice also states that they are moving to strike the prayer for punitive damages. Cross-Complainant is correct that the notice must quote the portion sought to be stricken “except where the motion is to strike an entire paragraph, cause of action, count, or defense.” (CRC 3.1322(a).) Here, however, Cross-Defendants do not move to strike any partial paragraphs; they move to strike only the full paragraph of the prayer that seeks punitive damages.
In any event, given that Cross-Complainant’s fraud allegations are sufficient, as discussed above, its prayer for punitive damages is also sufficiently alleged.
Accordingly, the motion to strike is DENIED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: February 17, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
[1] (See Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal. App. 4th 598, 605 [referring to the practice of “incorporating all or most prior paragraphs within each purported cause of action” as “disfavored,” and noting that “[t]his type of pleading should be avoided as it tends to cause ambiguity and creates redundancy”].)
Case Number: *******3296 Hearing Date: November 09, 2020 Dept: 49
Paul Atteukenian, individually and dba Pol Atteu v. Miss World America, LLC, et al.
DEMURRER TO FIRST AMENDED COMPLAINT
MOVING PARTY: Defendants Baron Michael Blake aka Michael Ian Blakey; Electra Star Management, LLC, dba Miss World America; and Miss World America, LLC
RESPONDING PARTY(S): Plaintiff Paul Atteukenian
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff is a fashion designer with his own reality television series, “Gown and Out in Beverly Hills.” He alleges that he was to be the exclusive evening gown and dress partner for the Miss World America pageant and the Miss Teen World America pageant and that the winner of Miss World 2019 would wear his gown, the creation of which would also be featured in a documentary. He designed four gowns pursuant to this alleged contract, but Defendants forbade the pageant winners from wearing them. Defendants also breached agreements with Plaintiff in other ways, such as forcing him to judge the Miss Teen World America pageant at the last minute.
Defendants demur to the first amended complaint.
TENTATIVE RULING:
Defendants Baron Michael Blake aka Michael Ian Blakey; Electra Star Management, LLC, dba Miss World America; and Miss World America, LLC’s demurrer to the first amended complaint (“FAC”) is SUSTAINED as to the second cause of action for fraud and deceit and the third cause of action for intentional interference with prospective economic relations.
Defendant Blakey’s demurrer to the FAC is SUSTAINED as to the first cause of action for breach of contract and the fourth cause of action for unfair competition.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiff must demonstrate this possibility at the hearing. If he doesn’t, no leave to amend will be given.
Additionally, Plaintiff needs to explain why he did not appropriately and effectively utilize the previous leave to amend to correct the same deficiencies that are still present in the FAC.
DISCUSSION:
Demurrer
Meet and Confer
The Declaration of Attorney Benjamin L. Caplan reflects that the meet and confer requirement set forth in CCP ; 430.41 was satisfied.
Analysis
Alter Ego Allegations as to Defendant Michael Blakey
Defendant Michael Blakey demurs to all four causes of action on the ground that Plaintiff has not alleged sufficient facts to establish his alter ego liability.[1] (CCP ; 430.10(e).)
A complaint “must set forth the facts with sufficient precision to put the defendant on notice about what the plaintiff is complaining and what remedies are being sought.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) Therefore, to “recover on an alter ego theory, a plaintiff . . . must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 696.)
A comparison of the complaint and the first amended complaint reveals only one change to the alter ego allegations (other than separating one long paragraph into multiple paragraphs): the complaint originally alleged that the “individual Defendants, and each of them, entered into personal transactions with the Corporation Defendants without the approval of other directors, or shareholders, or members, or managers” (Complaint ¶ 14) and now alleges that the “individual Defendant held himself out to Plaintiff and other creditors that he was personally responsible for the debts of the Corporation Defendant, including any liability to Plaintiff” (1AC ¶ 69.) This change does not resolve the deficiencies in Plaintiff’s alter ego allegations as to Blakey.
Accordingly, Blakey’s demurrer is SUSTAINED as to this particular cause of action.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiff must demonstrate this possibility at the hearing. If he doesn’t, no leave to amend will be given.
Additionally, Plaintiff needs to explain why he did not appropriately and effectively utilize the previous leave to amend to correct the same deficiencies that are still present in the FAC.
Last, it should be noted that denying leave to amend as to the alter ego allegation would certainly not be a fatal blow, nor result in any undue prejudice against Plaintiff, as Blakely could still be added as a judgment debtor in a post judgment proceeding based upon a showing of alter ego, if need be.[2]
First Cause of Action (Breach of Contract)
Only Defendant Michael Blakey demurs to the first cause of action, on the additional ground that he is not a party to the contract at issue.
To allege breach of written contract, Plaintiff must allege the existence of a written agreement with Defendants, Defendants’ breach, and Plaintiff’s resulting damages. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) There is no requirement to attach a copy of the agreement to the complaint, as the terms of the contract may be “set out verbatim in the body of the complaint.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 458-459.) More recent case law is even more permissive, allowing a plaintiff to plead the legal effect of a written contract rather than its precise language. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)
Here, as in the complaint, although Plaintiff alleges the written Memorandum of Understanding (“MOU”) was between Plaintiff and “Defendants” (¶ 72), the MOU attached to the complaint is signed only by Plaintiff and a representative of Miss World America, who are also referred to as the “parties.” (1AC, Exh. A.) “Exhibits attached to the complaint take precedence to the extent they contradict allegations in the complaint.” (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 943.)
Accordingly, there is no basis for Blakey’s individual liability for breach of contract. Moreover, as discussed above, there is no current sufficient basis on which to hold him liable based on an alter ego theory.
Accordingly, the demurrer of Defendant Michael Blakey is SUSTAINED as to this particular cause of action.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiff must demonstrate this possibility at the hearing. If he doesn’t, no leave to amend will be given.
Additionally, Plaintiff needs to explain why he did not appropriately and effectively utilize the previous leave to amend to correct the same deficiencies that are still present in the FAC.
Second Cause of Action (Fraud and Deceit)
All Defendants demur to the second cause of action for fraud and deceit on the ground that it fails to state facts sufficient to constitute a cause of action against them because Plaintiff neither identifies the statements on which it is purportedly based nor meets the heightened particularity requirements for fraud. (CCP ; 430.10(e).) Blakey additionally argues that Plaintiff does not sufficiently allege that he made any false statements justifiably relied on by Plaintiff and Plaintiff has not alleged his alter ego liability sufficiently.
As to Blakey’s individual arguments, they are not well taken as to this cause of action. As noted, Plaintiff’s alter ego allegations are insufficient. In this cause of action, however, Plaintiff alleges false representations by all “Defendants.” This poses other problems, as discussed below, but Blakey is not somehow excluded from these allegations. The cause of action either stands or falls as to all of the demurring Defendants, as Plaintiff’s relevant allegations are identical as to them. (Of course, to the extent that there are additional pleading requirements applicable only to corporate defendants, deficiencies in that area alone could doom this cause of action as to the corporate defendants. As it turns out, however, it is doomed as to all defendants.)
“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, italics omitted.)
Fraud must be pleaded with specificity rather than with “‘general and conclusory allegations.’” . . . The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. . . .
We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. . . . The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ’ ”
(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793, citations omitted.)
Plaintiff has not alleged any of the elements of intentional misrepresentation with the requisite particularity. Plaintiff alleges (or implies) the following representations by “Defendants and each of them” earlier in the 1AC:
17. Defendants and each of them, represented to Plaintiff that by donating such four evening gowns to the four winners, the winner of the Miss World America Pageant would wear Plaintiff’s gown at Miss World 2019 to be held in London, England later in the year and that Plaintiff’s gown would be considered in the international fashion designer competition at the Miss World 2019 pageant.
* * *
20. Defendants and each of them, with knowledge of the aforementioned and in full agreement thereof, represented to Plaintiff that if Plaintiff were to win the fashion designer competition, which was highly likely and anticipated, it would lead to opportunities to dress national and international contestants in such gowns and to be showcased on an international media platform.
* * *
41. Plaintiff thereafter learned that Defendants knowingly and intentionally intended to disrupt prospective economic relations for Plaintiff by means of intentional misrepresentations and fraudulent statements that Plaintiff has produced “knock off” dresses and that Plaintiff had overpriced the retail value of both opening number dresses and the custom designed gowns for the winner.
* * *
48. Further, contrary to earlier representations that the judging at the finals would be a group effort, Plaintiff was informed at the last moment that each judge would be sequestered in a small and dark room, conducting one on one interviews with each contestant. . . .
49. In further contradiction to their representations, Defendants and each of them, imposed long and arduous hours of taping on Plaintiff . . . without the provision of food or water; . . . and failed to provide security for . . . the Plaintiff . . . .
* * *
51. Plaintiff was further told that the MOU was not a final draft but rather an initial foundation of a contract that was meant to be sent to Plaintiff on September 23, 2019. Defendant delayed the process and never materialized said contract.
* * *
54. Further, Defendants, and each of them, contrary to their representations to both the contestants and Plaintiff, cancelled a “meet and greet” scheduled with Latoya Jackson. . . .
55. Further, Defendants, and each of them, promised Plaintiff that 2 rooms would be provided for his crew and his crew’s use, including meals, for the duration of the finals. This was agreed upon on or about July 17, 2019 by way of an e-mail from Defendants to Plaintiff. However, contrary to this agreement, Defendants and each of them, a few days prior to the Pageants, demanded that Plaintiff provide three custom designed gowns for their female host and represented to Plaintiff that if he did not make the gowns for her, accommodations for Plaintiff and his crew would not be provided. . . .
(1AC ¶¶ 17, 20, 41, 48, 49, 51, 54, 55.)
Plaintiff also alleges other “misrepresentations” by “Defendants,” but those were allegedly made to the contestants, not Plaintiff. (¶¶ 30, 31.)
Plaintiff then alleges, in this cause of action, that Defendants “made the representations hereinabove alleged, with the intent of enticing and inducing Plaintiff to enter into the MOU.” (¶ 84.) Which of the allegations alleged above? Who made these representations? How? How was Plaintiff’s reliance on these misrepresentations justified? What damage resulted from these misrepresentations? As to the corporate defendants, what individuals made these representations? What was their authority to speak on behalf of a particular corporation? To whom did they speak? When were these representations made? (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)
Not only are these allegations nearly identical to those in the complaint, they continue to be woefully deficient. Many of the allegations only imply that there had been earlier misrepresentations, without providing any detail whatsoever. Even Paragraph 55, which refers to an “agreement” in an email, does not specify which Defendant purportedly made this representation, let alone which individual.
Accordingly, the demurrers of both Defendants are SUSTAINED as to this particular cause of action.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiff must demonstrate this possibility at the hearing. If he doesn’t, no leave to amend will be given.
Additionally, Plaintiff needs to explain why he did not appropriately and effectively utilize the previous leave to amend to correct the same deficiencies that are still present in the FAC.
Third Cause of Action (Intentional Interference with Prospective Economic Relations)
Defendants demur to this cause of action on the ground that Plaintiff fails to adequately plead independent wrongful conduct and a specific economic relationship which was purportedly disrupted and appears to improperly allege that Defendants interfered with their own contract. Blakey also demurs on the ground that the alter ego allegations are insufficient.
As with the second cause of action, this cause of action alleges actions by all Defendants, and therefore Blakey’s potential liability is not merely as an alter ego of another Defendant. Accordingly, as with the second cause of action, the third cause of action stands or falls as to all of the demurring defendants.
The elements of intentional interference with prospective economic advantage are:
(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.
(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153, bold emphasis added.) In addition, a “plaintiff seeking to recover damages for interference with prospective economic advantage must plead and prove as part of its case-in-chief that the defendant's conduct was ‘wrongful by some legal measure other than the fact of interference itself.’” (Ibid., citation omitted.) In other words, a plaintiff must allege “intentional wrongful acts on the part of the defendant designed to disrupt the relationship.” (Id. at 1154.) “An act is not independently wrongful merely because defendant acted with an improper motive.” (Id. at 1158.)
Plaintiff argues in his opposition that an unspecified “Defendant” “intentionally interfered with prospective economic relationships with contestants such as Shree Saini and her mother, Ekta Saini.” (Oppo., at p. 9.) There is, however, no such allegation in the 1AC. Indeed, the only allegation specific to Ekta Saini and Shree Saini appears to lump Ekta Saini in which Defendant Michael Blakey, alleging that “Ekta Saini, the parent of contestant Shree Saini, as well as Defendant Michael Blakey, informed Plaintiff that funding in the Pageant account was neither sufficient to meet these reimbursement requests nor to pay its vendors in full.” (¶ 57.) Thus, Plaintiff has not sufficiently alleged an economic relationship with any third party that has been disrupted.
Moreover, Plaintiff has not sufficiently alleged independently wrongful conduct. As discussed in connection with the second cause of action, Plaintiff’s vague allegations of “intentional misrepresentations and fraudulent statements” (¶ 94) are insufficient. Allegations of a nebulous “smear campaign” (¶ 94) are likewise insufficient to plead that Defendants wrongfully intended to disrupt any particular relationships with third parties. Defendants are also correct that they cannot interfere with their own contract. (Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344, 350 [“[A] party to the plaintiff's contract cannot be liable under any of the four theories [including intentional interference with prospective economic advantage]. If the defendant is a party to the contract, the plaintiff is relegated to a cause of action for breach of that contract.”].)
Accordingly, the demurrers of both Defendants are SUSTAINED as to this particular cause of action.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiff must demonstrate this possibility at the hearing. If he doesn’t, no leave to amend will be given.
Additionally, Plaintiff needs to explain why he did not appropriately and effectively utilize the previous leave to amend to correct the same deficiencies that are still present in the FAC.
Fourth Cause of Action (Unfair Competition)
Defendant Blakey alone demurs to the fourth cause of action because Plaintiff has not alleged sufficient facts to establish his alter ego liability. (CCP ; 430.10(e).)
California Business & Professions Code ; 17200 prohibits any “unlawful, unfair or fraudulent business act or practice.” Ultimately, “an ‘unfair’ business practice occurs when that practice ‘offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Davis v. Ford Motor Credit Co., LLC (2009) 179 Cal.App.4th 581, 585.)
Plaintiff is attempting to “borrow” the law governing fraud as the basis for this claim. (¶ 101 [referring to Defendants’ “fraudulent conduct and misrepresentations”].) Where a plaintiff cannot state a claim under the “borrowed” law, it cannot state a UCL claim either. (Ingels v. Westwood One Broad. Servs., Inc. (2005) 129 Cal.App.4th 1050, 1060 [“A defendant cannot be liable under ; 17200 for committing unlawful business practices without having violated another law.”].)
Here, Plaintiff cannot state a cause of action for fraud and deceit against Defendant, as discussed above.
Accordingly, Blakey’s demurrer is SUSTAINED as to this particular cause of action.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. Plaintiff must demonstrate this possibility at the hearing. If he doesn’t, no leave to amend will be given.
Additionally, Plaintiff needs to explain why he did not appropriately and effectively utilize the previous leave to amend to correct the same deficiencies that are still present in the FAC.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: November 9, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
[1] Any arguments raised by Blakey that are unrelated to the alter ego allegations are discussed below.
[2] “Under section 187, the trial court is authorized to amend a judgment to add additional judgment debtors.... As a general rule, ‘a court may amend its judgment at any time so that the judgment will properly designate the real defendants.’.... Judgments may be amended to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor.... ‘Amendment of a judgment to add an alter ego “is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant.... ‘Such a procedure is an appropriate and complete method by which to bind new ... defendants where it can be demonstrated that in their capacity as alter ego of the corporation they in fact had control of the previous litigation, and thus were virtually represented in the lawsuit.’ ...” ...' ” . . . “The decision to grant an amendment in such circumstances lies in the sound discretion of the trial court. ‘The greatest liberality is to be encouraged in the allowance of such amendments in order to see that justice is done.’ ” (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 508.)
Case Number: *******3296 Hearing Date: July 30, 2020 Dept: 47
Paul Atteukenian, individually and dba Pol Atteu v. Miss World America, LLC, et al.
GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.
DEMURRER TO COMPLAINT
MOVING PARTY: Defendants Baron Michael Blake aka Michael Ian Blakey, individually and as trustee of the Blake Revocable Trust; Electra Star Management, LLC, dba Miss World America; and Miss World America, LLC
RESPONDING PARTY(S): Plaintiff Paul Atteukenian
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff is a fashion designer with his own reality television series, "Gown and Out in Beverly Hills." He alleges that he was to be the exclusive evening gown and dress partner for the Miss World America pageant and the Miss Teen World America pageant and that the winner of Miss World 2019 would wear his gown, the creation of which would also be featured in a documentary. He designed four gowns pursuant to this alleged contract, but Defendants forbade the pageant winners from wearing them. Defendants also breached agreements with Plaintiff in other ways, such as forcing him to judge the Miss Teen World America pageant at the last minute.
Defendants demur to the complaint.
TENTATIVE RULING:
Defendants Baron Michael Blake aka Michael Ian Blakey, individually and as trustee of the Blake Revocable Trust; Electra Star Management, LLC, dba Miss World America; and Miss World America, LLC’s demurrer to the complaint is SUSTAINED without leave to amend as to The Michael Blakey Revocable Trust, Michael Blakey Trust, The Blake Revocable Trust, and Blake Trust.
As to Defendant Miss World America, LLC, the demurrer to the first cause of action is OVERRULED.
As to Defendant Baron Michael Blake, aka Michael Blakey, the demurrer to the first cause of action is SUSTAINED.
As to all moving Defendants, the demurrer is OVERRULED as to the second and seventh causes of action.
As to all moving Defendants, the demurrer is SUSTAINED as to the third through sixth causes of action.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.
DISCUSSION:
Demurrer
The Importance of Paragraphs
A free tip for Plaintiff’s counsel for future reference: paragraphing is your friend. Paragraphs that are two to three pages long will never accomplish your goal, if your goal is effective communication. Unnumbered (in violation of CRC 3.1110(c)) pages 3 through 7 of the opposition consist of two total paragraphs (which also continue onto two additional pages). "A reader will address himself more readily to his task if he sees from the start that he will have breathing spaces from time to time than if what is before him looks like a marathon course."
Meet and Confer
The Declaration of Attorney Benjamin L. Caplan reflects that the meet and confer requirement set forth in CCP ; 430.41 was satisfied.
Analysis
Blake Revocable Trust as Defendant
Defendants demur to all causes of action on the ground that the Blake Revocable Trust is not an entity that can be sued. Defendants are correct.
A trust is "simply a collection of assets and liabilities." (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293.) "As such, it has no capacity to sue or be sued, or to defend an action." (Ibid.) The trust estate can be reached for "tortious acts of the trustee on behalf of the trust." (Ibid., bold emphasis added.) But in that case, the proceeding would be "against the trustee in the trustee’s representative capacity." (Ibid., quoting Probate Code ; 18004.)
Here, Plaintiff purports to sue the "Blake Revocable Trust" under that name and three others: the "Michael Blakey Revocable Trust," the "Michael Blakey Trust," and the "Blake Trust." (Complaint ¶¶ 7-10.) None of these trusts are proper defendants, and Plaintiff has not alleged any basis on which Michael Blakey could be sued as trustee of these trusts.
Accordingly, the demurrer is SUSTAINED without leave to amend as to the entire complaint as to The Michael Blakey Revocable Trust, Michael Blakey Trust, The Blake Revocable Trust, and Blake Trust.
First Cause of Action (Breach of Contract)
Defendants Miss World America, LLC and Baron Michael Blake, aka Michael Blakey, demur to the first cause of action for breach of contract on the ground that they were not parties to the contract at issue and that Plaintiff has not alleged facts sufficient to "establish" (presumably, plead) alter ego.
To allege breach of written contract, Plaintiff must allege the existence of a written agreement with Defendants, Defendants’ breach, and Plaintiff’s resulting damages. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) There is no requirement to attach a copy of the agreement to the complaint, as the terms of the contract may be "set out verbatim in the body of the complaint." (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 458-459.) More recent case law is even more permissive, allowing a plaintiff to plead the legal effect of a written contract rather than its precise language. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)
Here, although Plaintiff alleges the written Memorandum of Understanding ("MOU") was between Plaintiff and "Defendants" (¶ 61), the MOU attached to the complaint is signed only by Plaintiff and a representative of Miss World America, who are also referred to as the "parties." (Complaint, Exh. A.) "Exhibits attached to the complaint take precedence to the extent they contradict allegations in the complaint." (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 943.)
As to Miss World America, LLC, the Court cannot determine that this entity was not the entity with which Plaintiff contracted by examining the face of the complaint, and Defendants did not request that the Court take judicial notice of anything establishing that this entity did not exist when the parties entered into the alleged MOU. The demurrer is OVERRULED as to Defendant Miss World America, LLC.
As to Baron Michael Blake, aka Michael Blakey, the exhibit makes clear that he is not a signatory to the alleged agreement. Nor has Plaintiff sufficiently alleged any basis on which Blakey could be considered the alter ego of either Miss World America, LLC or Electra Star Management, LLC, dba Miss World America. Plaintiff’s alter ego allegations are as to "each individual Defendant" and the "Corporation or Limited Liability Company Defendants." (¶ 14.) There is no attempt to allege any specifics as to Blakey’s relationships to any of these entities. "To recover on an alter ego theory, a plaintiff . . . must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor." (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 696.) Plaintiff has not done so here.
Accordingly, as to Defendant Baron Michael Blake, aka Michael Blakey, the demurrer to the first cause of action is SUSTAINED.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.
Second Cause of Action (Breach of Implied in Fact Contract)
Defendants demur to the second cause of action on the ground that it is duplicative of the first cause of action.
Defendants argue that there is "no meaningful distinction" between these two causes of action, but that is incorrect. Plaintiff’s allegations in the first cause of action are based on the alleged Memorandum of Understanding ("MOU") (¶ 61), whereas the second cause of action is based on an "implied contract" based on the "conduct, words, representations, and the course of dealing between Plaintiff and Defendants" (¶ 73). These are different causes of action. For example, in Thompson v. California Brewing Co. (1957) 150 Cal.App.2d 469, the plaintiff’s first cause of action alleged breach of an express oral contract. (Id. at 473.) The second cause of action pleaded "the same facts as the first" but alleged "an implied in fact instead of an express contract." (Ibid., bold emphasis added.) Both were sufficient to state causes of action, and the court therefore reversed the trial court’s decision to sustain a demurrer to those causes of action without leave to amend. (Id. at 479.) Here, too, Plaintiff has properly stated causes of action for breach of contract and breach of implied-in-fact contract.
Accordingly, the demurrer is OVERRULED as to the second cause of action.
Third Cause of Action (Negligent Misrepresentation)
Without citing any statutory basis, and in a single paragraph, Defendants purport to demur to this cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (Demurrer, at p. 3.) This violates CRC 3.1320(a), which requires that "[e]ach ground of demurrer must be in a separate paragraph." Given that Defendants make no separate argument regarding uncertainty and do not identify any particular allegations that render them entirely unable to respond to the complaint, that ground will not be considered here or in connection with any other cause of action as to which Defendants’ demurrer violates CRC 3.1320(a). (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328.)
"The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ (Citation omitted.)" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal. App.4th 35, 50.)
The same pleading specificity requirement applicable to fraud applies to pleading negligent misrepresentation. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) Moreover, "[t]o be actionable, a negligent misrepresentation must ordinarily be as to past or existing material facts. ‘[P]redictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud.’ (Citation omitted.)" (Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal.App.4th 153, 158.) There is no cause of action for a negligent false promise. (Id. at 159 ["Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise."].)
The tort of negligent misrepresentation does not require scienter or intent to defraud. (Gagne v. Bertran (1954) 43 Cal.2d 481, 487-488 [275 P.2d 15].) It encompasses "[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true" (Civ. Code, ; 1710, subd. 2), and "[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true" (Civ. Code, ; 1572, subd. (2); see Fox v. Pollack (1986) 181 Cal. App. 3d 954, 962 [226 Cal. Rptr. 532] [describing elements of the tort]).
(Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 173-174.)
Here, Plaintiff has not alleged any of the elements of negligent misrepresentation with the requisite specificity. Alleging that Defendants "made the representations hereinabove alleged, with the intent of enticing and inducing Plaintiff to enter into the MOU," does not identify any particular misrepresentations of past or existing material fact, who made those misrepresentations, when, how, or any other particulars. Because there are no particular allegations regarding these misrepresentations, there are also no particular allegations regarding why Defendants had no reasonable ground for believing it to be true, how Plaintiff’s reliance on these misrepresentations was justified, or what damage resulted from these misrepresentations. Nor has Plaintiff alleged, as to the corporate defendants, the "names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made." (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793, citations omitted.)
Accordingly, the demurrer is SUSTAINED as to the third cause of action for negligent misrepresentation.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.
Fourth Cause of Action (Fraud and Deceit)
Defendants again improperly raise two grounds for their demurrer in a single paragraph, with no statutory citations to the basis for those two grounds. Again, the Court will consider only whether this cause of action states facts sufficient to constitute a cause of action. (CCP ; 430.10(e).)
"To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff." (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, italics omitted.)
Fraud must be pleaded with specificity rather than with "‘general and conclusory allegations.’" . . . The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. . . .
We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. . . . The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, "the pleading should be sufficient ‘ "to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud." ’ "
(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793, citations omitted.)
As in the third cause of action, Plaintiff has not alleged any of the elements of intentional misrepresentation with the requisite particularity. Nor has Plaintiff alleged, as to the corporate defendants, the "names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made." (Ibid.)
Accordingly, the demurrer is SUSTAINED as to the fourth cause of action.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. Otherwise, no leave to amend will be given.
Fifth Cause of Action (Intentional Interference with Prospective Economic Relationships)
Defendants demur to this cause of action, again with no statutory basis cited, on the ground that Plaintiff fails to plead a specific economic relationship which was purportedly disrupted and appears to improperly allege that Defendants interfered with their own contract.
The elements of a cause of action for interference with contractual relations are: (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of this contract; (3) the 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 damages. . . . Proof the interfering conduct was wrongful, independent from the interference itself, is not required to recover for interference with contractual relations.
(Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 237-238, bold emphasis added.)
Defendants are correct that Plaintiff has not alleged the first element – the existence of a valid contract between the plaintiff and a third party. Plaintiff realleges that he had an economic relationship with Defendants and then alleges that Defendants "knowingly and intentionally intended to disrupt such prospective economic relations." (¶ 97, bold emphasis added.) No valid contract between Plaintiff and any third party is alleged, however.
Accordingly, the demurrer is SUSTAINED as to the fifth cause of action for intentional interference with contractual relations.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. If he does not, no leave to amend will be given.
Sixth Cause of Action (Negligent Interference with Prospective Economic Advantage)
Defendants demur to this cause of action, again with no statutory basis cited and erroneously referring to it as the fifth cause of action, on the ground that Plaintiff fails to plead a specific economic relationship which was purportedly disrupted and appears to improperly allege that Defendants interfered with their own contract.
The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant’s failure to act with reasonable care; (5) actual disruption of the relationship; and (6) economic harm proximately caused by the defendant’s negligence.
(Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1005.) The plaintiff must show "not only that the defendant interfered with an economic relationship, but also ‘that the defendant’s interference was wrongful "by some measure beyond the fact of the interference itself."’" (Id. at 1006.)
Here, as in the fifth cause of action, Plaintiff alleges only "the economic relationship" with Defendants (¶ 104), not any existing relationship with a third party.
Accordingly, the demurrer is SUSTAINED as to the sixth cause of action for negligent interference with prospective economic advantage.
Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiffs must demonstrate this possibility at the hearing. If he does not, no leave to amend will be given.
Seventh Cause of Action (Unfair Competition)
Defendants demur to this cause of action strictly on the basis of uncertainty. (CCP ; 430.10(f).)
Demurrers for uncertainty are disfavored, because discovery can be used for clarification, and apply only where defendants cannot reasonably determine what issues or claims are stated. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) If a cause of action is not so incomprehensible that Defendants cannot reasonably respond, it is not uncertain. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848 n.3.) In addition, a "demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendants’ knowledge." (Chen, supra, 33 Cal.App.5th at 822.) A failure to specify what specific aspects of a cause of action are uncertain is another basis on which to overrule the demurrer. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328.)
California Business & Professions Code ; 17200 prohibits any "unlawful, unfair or fraudulent business act or practice." Ultimately, "an ‘unfair’ business practice occurs when that practice ‘offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." (Davis v. Ford Motor Credit Co., LLC (2009) 179 Cal.App.4th 581, 585.)
Plaintiff is attempting to "borrow" the law governing fraud as the basis for this claim. (¶ 109 [referring to Defendants’ "fraudulent conduct an misrepresentations"].) Where a plaintiff cannot state a claim under the "borrowed" law, it cannot state a UCL claim either. (Ingels v. Westwood One Broad. Servs., Inc. (2005) 129 Cal.App.4th 1050, 1060 ["A defendant cannot be liable under ; 17200 for committing unlawful business practices without having violated another law."].) However, Defendants did not demur to this cause of action on the ground that Plaintiff could not state a claim; they demurred only on the ground of uncertainty.
Here, it is clear that Plaintiff is relying on his earlier incorporated allegations – a common, though disfavored, practice – and claiming that those allegations amount to unlawful, unfair, and fraudulent business practices. (¶¶ 108, 110.) Plaintiff may not be successful in proving this, especially given the problems noted above with Plaintiff’s fraud claim, and therefore the Court might have been sympathetic to a demurrer on the basis of CCP ; 430.10(e), but this cause of action is not uncertain.
Accordingly, the demurrer to the seventh cause of action is OVERRULED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: July 30, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.