This case was last updated from Los Angeles County Superior Courts on 06/05/2021 at 03:49:59 (UTC).

PYRAMID TECHNOLOGIES, INC., A CALIFORNIA CORPORATION VS PF HERITAGE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Case Summary

On 02/24/2020 PYRAMID TECHNOLOGIES, INC , A CALIFORNIA CORPORATION filed a Contract - Other Contract lawsuit against PF HERITAGE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are TERESA A. BEAUDET and TIMOTHY PATRICK DILLON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7602

  • Filing Date:

    02/24/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

TERESA A. BEAUDET

TIMOTHY PATRICK DILLON

 

Party Details

Plaintiff

PYRAMID TECHNOLOGIES INC. A CALIFORNIA CORPORATION

Defendants

PF HERITAGE LLC A CALIFORNIA LIMITED LIABILITY COMPANY

PASTERNAK IGOR

Attorney/Law Firm Details

Plaintiff Attorneys

CASPINO MICHAEL M.

FERRUCCI JOSEPH ANTHONY

Defendant Attorneys

TRAVILLION TIFFANY N

ROSEN GLENN T

 

Court Documents

Order - ORDER CASE MANAGEMENT CONFERENCE

5/24/2021: Order - ORDER CASE MANAGEMENT CONFERENCE

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

5/24/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Amended Complaint - AMENDED COMPLAINT (1ST)

4/21/2021: Amended Complaint - AMENDED COMPLAINT (1ST)

Order - ORDER RE: MOTION TO BE RELIEVED AS COUNSEL

4/22/2021: Order - ORDER RE: MOTION TO BE RELIEVED AS COUNSEL

Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

4/22/2021: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

Substitution of Attorney

5/5/2021: Substitution of Attorney

Minute Order - MINUTE ORDER (HEARING ON MOTION TO BE RELIEVED AS COUNSEL)

4/22/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO BE RELIEVED AS COUNSEL)

Order - ORDER RE DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK'S DEMURRER TO COMPLAINT BY PLAINTIFF PYRAMID TECHNOLOGIES, INC.; DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK'S MOTION TO STRIKE PORTI

3/24/2021: Order - ORDER RE DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK'S DEMURRER TO COMPLAINT BY PLAINTIFF PYRAMID TECHNOLOGIES, INC.; DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK'S MOTION TO STRIKE PORTI

Notice - NOTICE OF CONTINUED HEARING ON MOTION TO BE RELIEVED OF COUNSEL

3/29/2021: Notice - NOTICE OF CONTINUED HEARING ON MOTION TO BE RELIEVED OF COUNSEL

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...)

3/18/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...)

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...)

3/24/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...)

Case Management Order

3/8/2021: Case Management Order

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

3/8/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Motion to Be Relieved as Counsel

2/26/2021: Motion to Be Relieved as Counsel

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

2/26/2021: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 02/26/2021

2/26/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 02/26/2021

Minute Order - MINUTE ORDER (COURT ORDER) OF 02/26/2021

2/26/2021: Minute Order - MINUTE ORDER (COURT ORDER) OF 02/26/2021

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10) (RES...)

2/24/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10) (RES...)

39 More Documents Available

 

Docket Entries

  • 05/05/2021
  • DocketSubstitution of Attorney; Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

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  • 04/22/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion to be Relieved as Counsel - Held

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  • 04/22/2021
  • DocketOrder Re: Motion to be Relieved as Counsel; Filed by Clerk

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  • 04/22/2021
  • DocketOrder Granting Attorney's Motion to Be Relieved as Counsel-Civil; Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

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  • 04/22/2021
  • DocketMinute Order ( (Hearing on Motion to be Relieved as Counsel)); Filed by Clerk

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  • 04/21/2021
  • DocketAmended Complaint ((1st)); Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

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  • 03/29/2021
  • DocketNotice (of Continued Hearing on Motion to Be Relieved of Counsel); Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

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  • 03/24/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Case Management Conference - Held - Continued

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  • 03/24/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Demurrer - without Motion to Strike - Held - Motion Granted

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  • 03/24/2021
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Motion to be Relieved as Counsel - Held - Continued

    Read MoreRead Less
52 More Docket Entries
  • 06/19/2020
  • Docketat 08:30 AM in Department 73, Timothy Patrick Dillon, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 05/12/2020
  • Docketat 08:30 AM in Department 73, Timothy Patrick Dillon, Presiding; Court Order

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  • 05/12/2020
  • DocketCertificate of Mailing for ((Court Order Re: Notice of Continuance of Hearing(s) Due to C...) of 05/12/2020); Filed by Clerk

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  • 05/12/2020
  • DocketMinute Order ((Court Order Re: Notice of Continuance of Hearing(s) Due to C...)); Filed by Clerk

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  • 03/12/2020
  • DocketNotice of Lodging (Noltice of Lodging Recorded Notice of Lis Pendens Solely as to the Real Property Commonly Known as 1724 Aeros Way, Montebello, California); Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

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  • 03/05/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/24/2020
  • DocketCivil Case Cover Sheet; Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

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  • 02/24/2020
  • DocketSummons (on Complaint); Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

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  • 02/24/2020
  • DocketComplaint; Filed by PYRAMID TECHNOLOGIES, INC., a California Corporation (Plaintiff)

    Read MoreRead Less
  • 02/24/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less

Tentative Rulings

Case Number: 20STCV07602    Hearing Date: April 22, 2021    Dept: 50

 

Superior Court of California

County of Los Angeles

Department 50

Pyramid technologies, inc.,

Plaintiff,

vs.

pf heritage, llc, et al.,

Defendants.

Case No.:

20STCV07602

Hearing Date:

April 22, 2021

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

MOTION TO BE RELIEVED AS COUNSEL

Michael Weiler, Esq. of Buchalter, Inc. (“Counsel”) moves to be relieved as counsel for Plaintiff Pyramid Technologies, Inc. The Court finds that Counsel has complied with the relevant procedural requirements (CRC 3.1362) and has provided sufficient reason for withdrawal. Moreover, as previously ordered, Counsel has filed a proof of service indicating that his client was served with notice of the new hearing date. However, the proposed order form MC-053 submitted by counsel does not include the telephone number for Plaintiff nor does it include the next scheduled hearing. The Court has filled in the information for the CMC on May 24, 2021, but it does not have the telephone number. Assuming Counsel will provide the telephone number at the hearing, the Court will grant the motion and sign the proposed order which counsel must serve to effectuate the relief granted.

Counsel is ordered to give notice of this order.

DATED: April 22, 2021 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: 20STCV07602    Hearing Date: March 24, 2021    Dept: 50

 

Superior Court of California

County of Los Angeles

Department 50

pyramid technologies, inc.,

Plaintiff,

vs.

pf heritage, llc, et al.,

Defendants.

Case No.:

20STCV07602 [r/w 19STCV29232]

Hearing Date:

March 24, 2021

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK’S DEMURRER TO COMPLAINT BY PLAINTIFF PYRAMID TECHNOLOGIES, INC.;

DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT;

MOTIONS TO BE RELIEVED AS COUNSEL

Order re Demurrer and Motion to Strike

Background

Plaintiff Pyramid Technologies, Inc. (“Pyramid”) filed this action on February 24, 2020 against Defendants PF Heritage, LLC (“PF”) and Igor Pasternak (“Pasternak”) (jointly, the “PF Parties”). The Complaint asserts causes of action for breach of contract, fraud, and conversion arising from the lease of the real property located at 1724 Aeros Way, Montebello, California (the “Property”).

The PF Parties now demur to each of the causes of action in the Complaint and move to strike portions of the Complaint. Pyramid opposes both.

The demurrer and motion to strike were originally to be heard on March 18, 2021. However, at the hearing, counsel for the PF Parties did not make an appearance due to illness. Therefore, the Court continued the hearing to March 24, 2021.

Request for Judicial Notice

The Court grants the PF Parties’ request for judicial notice as to Exhibits 1-3.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. ((Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. ((Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

In the Complaint, Pyramid alleges that on October 18, 2018, Pyramid proposed to lease the Property. (Compl., ¶ 10.) The proposal was for a 12-month lease by Pyramid with the option to purchase the Property during the 12-month term. (Compl., ¶ 10.) On December 14, 2018, Pyramid received a counteroffer from PF to sell the Property for $9,730,125. (Compl., ¶ 11.) Pyramid and the PF Parties entered into a lease agreement for the Property at some point in 2018. (Compl., ¶ 12.) Subsequently, Pasternak stated that this lease was dead and unilaterally canceled the lease. (Compl., ¶ 12.) On February 27, 2019, Pyramid and PF entered into a Lease Damages Agreement where the parties agreed that Pyramid would execute the lease on February 27, 2019 and would pay PF more than $486,700 on or by March 1, 2019. (Compl., ¶ 13.) Thereafter, the parties executed another lease for the Property, with the term commencing on May 1, 2019 and a base rent of $43,245 (the “Lease”). (Compl., ¶ 14.) The agreed use of the Property during the lease term was warehousing, extraction, cultivation, processing, transportation, and delivery or related extraction of oils and resins from cannabis plants. (Compl., ¶ 14.) The lease also provides that the PF Parties would use their best commercially reasonably efforts to deliver possession of the Property by May 1, 2019. (Compl., ¶ 15.) At no time has Pyramid been in possession of the Property. (Compl., ¶ 16.)

Thereafter, Pasternak demanded that Pyramid loan the PF Parties nearly $300,000 in order for Pyramid to keep its lease and option to purchase the Property. (Compl., ¶ 17.) Pyramid made the loan. (Compl., ¶ 17.) The PF Parties notified Pyramid that they would vacate the Property upon 60 days’ notice from Pyramid, and Pyramid gave notice to the PF Parties to vacate the Property on or about April 1, 2019. (Compl., ¶ 18.) In reliance on the lease and the PF Parties’ assurances that they would vacate the Property, Pyramid secured additional contracts to provide cannabis products that would be produced at the Property. (Compl., ¶ 19.) But because the PF Parties have not vacated the Property, Pyramid has not been able to use the Property for its agreed use. (Compl., ¶ 19.)

The PF Parties contend that all of the causes of action are uncertain. The Court finds that the claims and parties are sufficiently labeled, and the allegations are neither vague or ambiguous. Therefore, the special demurrer is overruled.

The Court also notes that the PF Parties have withdrawn their arguments relating to the applicability of the doctrine of res judicata to the Complaint. (See Declaration of Glenn T. Rosen filed on March 10, 2021 in 19STCV29232.)

The breach of contract cause of action is based on the allegation that the PF Parties failed to vacate the Property and failed to deliver possession of the Property to Pyramid. (Compl., ¶ 23.) The PF Parties contend that the breach of contract cause of action must fail because Pyramid fails to attach a copy of the agreement or allege that it was in writing pursuant to Code of Civil Procedure section 430.10, subdivision (g). The PF Parties also argue that Pyramid fails to allege that it ever paid rent or that the agreement to vacate the Property was part of the lease itself (whether the 2018 lease or the 2019 lease). The Court agrees that the breach of contract cause of action is deficient for these reasons. Although Pyramid argues that it alleges that the PF Parties agreed to deliver possession in paragraph 15 of the Complaint, the Court notes that paragraph 15 states that the PF Parties agreed to use their best commercially reasonable efforts to deliver possession by May 1, 2019—that is not the same as agreeing to deliver possession. Pyramid also contends that the PF Parties have requested judicial notice of the lease as part of their “evidence” in support of the demurrer, but the Court takes judicial notice only of the fact of the filing of the unlawful detainer complaint attached as Exhibit 1 to the request for judicial notice. Pyramid is still required to either attach a copy of the underlying agreement or to allege that it was in writing, which Pyramid failed to do. Therefore, the Court finds that Pyramid has failed to state facts sufficient to constitute a cause of action for breach of contract.

The fraud cause of action is based on the allegation that the PF Parties represented that they would vacate the Property upon request by Pyramid. Pyramid alleges that Pasternak made this oral representation to Pyramid near the time the parties executed the lease. (Compl., ¶ 26.) The PF Parties contend that the fraud cause of action must fail because Pyramid fails to allege the elements with specificity and fails to allege facts showing an intent to defraud. To plead a cause of action for fraud, a plaintiff must plead facts showing the following elements: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. ((Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) It is well-settled that fraud must be pled with particularity. ((Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The “particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation omitted.]” (Id. at p. 645 [emphasis in original].)

While the Court finds that intent to defraud has been sufficiently alleged (in paragraph 29, Pyramid alleges that the PF Parties intended for Pyramid to rely on the representation that the Property would be vacated so that Pyramid would continue with the lease and exercise the option to purchase the Property), the Court agrees that the representation itself has not been pleaded with sufficient particularity. Alleging that Pasternak made an oral representation “near the time the parties executed the lease” is not particular enough. (See Compl., ¶ 26.) The Court thus finds that Pyramid has failed to allege facts sufficient to constitute a cause of action for fraud.

In support of the third cause of action for conversion, Pyramid alleges that it is entitled to possess and use the Property and that Pyramid has been deprived of the use of the Property by the PF Parties. (Compl., ¶¶ 34-36.) The PF Parties contend that the conversion claim must fail because Pyramid has not alleged facts showing its right to possession of the Property, in other words, that Pyramid has a right to possession under the operative lease agreement. The Court agrees. “Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages.” ((Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.) Here, not only has Pyramid failed to allege right to possession, Pyramid has also failed to allege right to possession of personal property. Therefore, the Court finds that Pyramid has failed to allege facts sufficient to constitute a cause of action for conversion.

Motion to Strike

The PF Parties move to strike the prayer for punitive damages. A motion to strike may lie where the facts alleged do not rise to the level of “malice, oppression or fraud” required to support a punitive damages award. ((Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64.) Because the Court finds that Plaintiff has failed to state a claim for fraud, the motion to strike as to punitive damages is granted.

The PF Parties also move to strike the prayer for attorney fees because attorney fees are not recoverable unless expressly authorized by contract or statute. ((Code Civ. Proc., § 1717, subd. (a).) As the PF Parties correctly note, Pyramid has not alleged any contract or statutory basis that would entitle it to recover attorney fees, therefore the motion to strike as to attorney fees is granted.

Conclusion

Based on the foregoing, the PF Parties’ demurrer to the first and second causes of action is sustained, with leave to amend. The demurrer to the third cause of action is sustained, without leave to amend. The PF Parties’ motion to strike is granted, with leave to amend.

The Court orders Pyramid to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days of this order, the PF Parties may file a motion to dismiss and a proposed judgment of dismissal pursuant to Code of Civil Procedure section 581, subdivision (f)(2) within 30 days of the date of notice of this order. Pursuant to California Rules of Court, rule 3.1320(h), such a motion may be made by ex parte application.

The PF Parties are ordered to give notice of this Order.

Orders re Motions to be Relieved as Counsel

Michael J. Weiler of Buchalter, APC (“Counsel”) moves to be relieved as counsel for Plaintiff Pyramid Technologies, Inc. in case no.19STCV29232 and case no. 20STCV07602. With regard to the motion in case no. 19STCV29232, the Court finds that Counsel has complied with the relevant procedural requirements (CRC 3.1362) and has provided sufficient reason for withdrawal. Accordingly, the Court grants the motion and will sign the proposed Order form MC-053 which counsel must serve to effectuate the relief granted.

With regard to case no. 20STCV07602, the Court notes that there is no proof of service showing that the parties to be served were given notice of the new location of the hearing (Department 50) and the new time (10:00 a.m.). Therefore, the Court denies the motion in that case without prejudice.

Counsel is ordered to give notice of these Orders.

DATED: March 24, 2021

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: 20STCV07602    Hearing Date: March 18, 2021    Dept: 50

 

Superior Court of California

County of Los Angeles

Department 50

pyramid technologies, inc.,

Plaintiff,

vs.

pf heritage, llc, et al.,

Defendants.

Case No.:

20STCV07602 [r/w 19STCV29232]

Hearing Date:

March 18, 2021

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK’S DEMURRER TO COMPLAINT BY PLAINTIFF PYRAMID TECHNOLOGIES, INC.;

DEFENDANTS PF HERITAGE, LLC AND IGOR PASTERNAK’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

Background

Plaintiff Pyramid Technologies, Inc. (“Pyramid”) filed this action on February 24, 2020 against Defendants PF Heritage, LLC (“PF”) and Igor Pasternak (“Pasternak”) (jointly, the “PF Parties”). The Complaint asserts causes of action for breach of contract, fraud, and conversion arising from the lease of the real property located at 1724 Aeros Way, Montebello, California (the “Property”).

The PF Parties now demur to each of the causes of action in the Complaint and move to strike portions of the Complaint. Pyramid opposes both.

Request for Judicial Notice

The Court grants the PF Parties’ request for judicial notice as to Exhibits 1-3.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. ((Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. ((Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

In the Complaint, Pyramid alleges that on October 18, 2018, Pyramid proposed to lease the Property. (Compl., ¶ 10.) The proposal was for a 12-month lease by Pyramid with the option to purchase the Property during the 12-month term. (Compl., ¶ 10.) On December 14, 2018, Pyramid received a counteroffer from PF to sell the Property for $9,730,125. (Compl., ¶ 11.) Pyramid and the PF Parties entered into a lease agreement for the Property at some point in 2018. (Compl., ¶ 12.) Subsequently, Pasternak stated that this lease was dead and unilaterally canceled the lease. (Compl., ¶ 12.) On February 27, 2019, Pyramid and PF entered into a Lease Damages Agreement where the parties agreed that Pyramid would execute the lease on February 27, 2019 and would pay PF more than $486,700 on or by March 1, 2019. (Compl., ¶ 13.) Thereafter, the parties executed another lease for the Property, with the term commencing on May 1, 2019 and a base rent of $43,245 (the “Lease”). (Compl., ¶ 14.) The agreed use of the Property during the lease term was warehousing, extraction, cultivation, processing, transportation, and delivery or related extraction of oils and resins from cannabis plants. (Compl., ¶ 14.) The lease also provides that the PF Parties would use its best commercially reasonably efforts to deliver possession of the Property by May 1, 2019. (Compl., ¶ 15.) At no time has Pyramid been in possession of the Property. (Compl., ¶ 16.)

Thereafter, Pasternak demanded that Pyramid loan the PF Parties nearly $300,000 in order for Pyramid to keep its lease and option to purchase the Property. (Compl., ¶ 17.) Pyramid made the loan. (Compl., ¶ 17.) The PF Parties notified Pyramid that they would vacate the Property upon 60 days’ notice from Pyramid, and Pyramid gave notice to the PF Parties to vacate the Property on or about April 1, 2019. (Compl., ¶ 18.) In reliance on the lease and the PF Parties’ assurances that they would vacate the Property, Pyramid secured additional contracts to provide cannabis products that would be produced at the Property. (Compl., ¶ 19.) But because the PF Parties have not vacated the Property, Pyramid has not been able to use the Property for its agreed use. (Compl., ¶ 19.)

The PF Parties contend that all of the causes of action are uncertain. The Court finds that the claims and parties are sufficiently labeled, and the allegations are neither vague or ambiguous. Therefore, the special demurrer is overruled.

The Court also notes that the PF Parties have withdrawn their arguments relating to the applicability of the doctrine of res judicata to the Complaint. (See Declaration of Glenn T. Rosen filed on March 10, 2021 in 19STCV29232.)

The breach of contract cause of action is based on the allegation that the PF Parties failed to vacate the Property and failed to deliver possession of the Property to Pyramid. (Compl., ¶ 23.) The PF Parties contend that the breach of contract cause of action must fail because Pyramid fails to attach a copy of the agreement or allege that it was in writing pursuant to Code of Civil Procedure section 430.10, subdivision (g). The PF Parties also argue that Pyramid fails to allege that it ever paid rent or that the agreement to vacate the Property was part of the lease itself (whether the 2018 lease or the 2019 lease). The Court agrees that the breach of contract cause of action is deficient for these reasons. Although Pyramid argues that it alleges that the PF Parties agreed to deliver possession in paragraph 15 of the Complaint, the Court notes that paragraph 15 states that the PF Parties agreed to use their best commercially reasonable efforts to deliver possession by May 1, 2019—that is not the same as agreeing to deliver possession. Pyramid also contends that the PF Parties have requested judicial notice of the lease as part of their “evidence” in support of the demurrer, but the Court takes judicial notice only of the fact of the filing of the unlawful detainer complaint attached as Exhibit 1 to the request for judicial notice. Pyramid is still required to either attach a copy of the underlying agreement or to allege that it was in writing, which Pyramid failed to do. Therefore, the Court finds that Pyramid has failed to state facts sufficient to constitute a cause of action for breach of contract.

The fraud cause of action is based on the allegation that the PF Parties represented that they would vacate the Property upon request by Pyramid. Pyramid alleges that Pasternak made this oral representation to Pyramid near the time the parties executed the lease. (Compl., ¶ 26.) The PF Parties contend that the fraud cause of action must fail because Pyramid fails to allege the elements with specificity and fails to allege facts showing an intent to defraud. To plead a cause of action for fraud, a plaintiff must plead facts showing the following elements: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. ((Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) It is well-settled that fraud must be pled with particularity. ((Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The “particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation omitted.]” (Id. at p. 645 [emphasis in original].)

While the Court finds that intent to defraud has been sufficiently alleged (in paragraph 29, Pyramid alleges that the PF Parties intended for Pyramid to rely on the representation that the Property would be vacated so that Pyramid would continue with the lease and exercise the option to purchase the Property), the Court agrees that the representation itself has not been pleaded with sufficient particularity. Alleging that Pasternak made an oral representation “near the time the parties executed the lease” is not particular enough. (See Compl., ¶ 26.) The Court thus finds that Pyramid has failed to allege facts sufficient to constitute a cause of action for fraud.

In support of the third cause of action for conversion, Pyramid alleges that it is entitled to possess and use the Property and that Pyramid has been deprived of the use of the Property by the PF Parties. (Compl., ¶¶ 34-36.) The PF Parties contend that the conversion claim must fail because Pyramid has not alleged facts showing its right to possession of the Property, in other words, that Pyramid has a right to possession under the operative lease agreement. The Court agrees. “Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages.” ((Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.) Here, not only has Pyramid failed to allege right to possession, Pyramid has also failed to allege right to possession of personal property. Therefore, the Court finds that Pyramid has failed to allege facts sufficient to constitute a cause of action for conversion.

Motion to Strike

The PF Parties move to strike the prayer for punitive damages. A motion to strike may lie where the facts alleged do not rise to the level of “malice, oppression or fraud” required to support a punitive damages award. ((Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64.) Because the Court finds that Plaintiff has failed to state a claim for fraud, the motion to strike as to punitive damages is granted.

The PF Parties also move to strike the prayer for attorney fees because attorney fees are not recoverable unless expressly authorized by contract or statute. ((Code Civ. Proc., § 1717, subd. (a).) As the PF Parties correctly note, Pyramid has not alleged any contract or statutory basis that would entitle it to recover attorney fees, therefore the motion to strike as to attorney fees is granted.

Conclusion

Based on the foregoing, the PF Parties’ demurrer to the first and second causes of action is sustained, with leave to amend. The demurrer to the third cause of action is sustained, without leave to amend. The PF Parties’ motion to strike is granted, with leave to amend.

The Court orders Pyramid to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days of this order, the PF Parties may file a motion to dismiss and a proposed judgment of dismissal pursuant to Code of Civil Procedure section 581, subdivision (f)(2) within 30 days of the date of notice of this order. Pursuant to California Rules of Court, rule 3.1320(h), such a motion may be made by ex parte application.

The PF Parties are ordered to give notice of this Order.

DATED: March 18, 2021

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: 20STCV07602    Hearing Date: February 24, 2021    Dept: 73

2/24/21

Dept. 73

Rafael Ongkeko, Judge presiding

PYRAMID TECHNOLOGIES, INC. v. PF HERITAGE, LLC (20STCV07602)

Counsel for plaintiff/moving party: Michael W. Caspino, Michael Weiler (Buchalter)

Counsel for defendants/opposing parties: Glenn Rosen

Demurrer to complaint; motion to strike portions thereof (filed 12/8/20)

TENTATIVE RULING

None at this time. The parties shall advise the court if they prefer a ruling on the demurrer and motion to strike pending a ruling on the Notice of Related Case in the lower-numbered case assigned to Dept. 50. If so, the court will hear argument.

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