Judge: Andrew E. Cooper, Case: 21CHCV00778, Date: 2024-10-11 Tentative Ruling
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Case Number: 21CHCV00778 Hearing Date: October 11, 2024 Dept: F51
OCTOBER 10, 2024
DEMURRER WITH MOTION TO STRIKE
Los Angeles Superior Court Case # 21CHCV00778
Demurrer with Motion to Strike Filed: 6/21/24
MOVING PARTY: Defendants Shaoul Levy, an individual; B-Perris Grow, LLC, a California limited liability company; and D-Perris Grow, LLC, a California limited liability company (collectively, “Moving Defendants”)¿
RESPONDING PARTY: Plaintiffs JBS Enterprises LLC, a California limited liability company; and Jason Bolding, an individual (collectively, “Plaintiffs”)
NOTICE: OK
RELIEF REQUESTED: Moving Defendants demur to the first through fourth, and sixth through eighth causes of action in Plaintiffs’ third amended complaint (“TAC”). Moving Defendants move to strike: (a) Plaintiffs’ inclusion of defendant Levy as in their first through fourth, and sixth, causes of action; (b) Plaintiffs’ eighth cause of action in its entirety; and (c) Plaintiffs’ request for attorneys’ fees.
TENTATIVE RULING: The demurrer is overruled as to Plaintiffs’ sixth through eighth causes of action and sustained as to Plaintiffs’ first through fourth causes of action without leave to amend]. The motion to strike is denied as to Plaintiffs’ eighth cause of action; and granted as to Plaintiffs’ inclusion of defendant Levy in their first through fourth, and sixth, causes of action, and as to Plaintiffs’ prayer for attorney fees without leave to amend.
BACKGROUND
Plaintiff Jason Bolding is the founder and owner of JBS Enterprises LLC (“JBS”), a cannabis cultivation and distribution company. (TAC ¶ 12.) In 2018, Bolding applied for the City of Los Angeles Department of Cannabis Regulation’s Cannabis Social Equity Program (“SEP”), which was established to help qualifying applicants to jumpstart their cannabis businesses by providing “certain application and licensing benefits …, including expedited processing, exclusive rights to certain types of licenses, and access to mentorship, business assistance, and capital from ‘sponsors’ or ‘incubators.’” (Id. at ¶ 17.) Applicants for the program received certain benefits for either qualifying as a historically marginalized individual or entity, or as an entity willing to ‘incubate” the other category of applicants. (Id. at ¶¶ 20–24.) “Incubation” includes the provision of “material support in the form of capital, ancillary business costs, education and training, and property.” (Id. at ¶ 24.)
Plaintiffs allege that Bolding applied and was verified for Phase 2 of the SEP licensing process, which began around August 2018. (Id. at ¶¶ 19, 25–28.) As such, Bolding was thereafter put in contact with defendant Shaoul Levy, who represented himself as the owner of non-moving defendant A-Perris Grow, LLC (“APG”), a business seeking to qualify for the SEP as a potential incubating entity. (Id. at ¶ 29.) Plaintiffs allege that Bolding and Levy entered into negotiations and ultimately agreed for APG to incubate Plaintiffs by providing to them certain warehouse space and capital in exchange for APG’s qualification for the SEP (“APG Agreement”). (Id. at ¶¶ 31–34.) Plaintiffs allege that Levy failed to perform his obligations under the agreement. (Id. at ¶¶ 35–36.)
In 2019, Plaintiffs allegedly learned that moving defendants B-Perris Grow LLC (“BPG”) and D-Perris Grow LLC (“DPG”), additional entities managed by Levy, had submitted SEP applications using Bolding as the verified applicant without Bolding’s consent. (Id. at ¶¶ 38–40.) Thereafter, Bolding entered into negotiations, and ultimately a separate agreement, wherein Plaintiffs were to receive a separate amount of capital, as well as an additional loan (“BPG Agreement”). (Id. at ¶¶ 41–42.) Plaintiffs allege that Moving Defendants similarly failed to perform their obligations under this second agreement. (Id. at ¶ 43.)
On 10/5/21, Plaintiffs filed this action against Levy, APG, BPG, and DPG (collectively, “Defendants”), alleging the following five causes of action: (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Fraud; (4) Promissory Estoppel; and (5) Violation of Business and Professions Code § 17200 et seq.
On 3/4/22, Plaintiffs filed their first amended complaint against Defendants, alleging the following seven causes of action: (1) Breach of Contract – APG Agreement; (2) Breach of Contract – BPG Agreement; (3) Breach of Implied Covenant of Good Faith and Fair Dealing – APG Agreement; (4) Breach of Implied Covenant of Good Faith and Fair Dealing – BPG Agreement; (5) Fraud – Intentional Misrepresentation; (6) Promissory Estoppel; and (7) Violation of Business and Professions Code § 17200 et seq.
On 9/9/22, Plaintiffs filed their second amended complaint (“SAC”), alleging the same seven causes of action against Defendants. On 5/1/24, after the Court partially sustained Moving Defendants’ demurrer against the SAC, Plaintiffs filed the TAC, alleging the same seven causes of action and an additional cause of action for Unjust Enrichment.
On 6/21/24, Moving Defendants filed the instant demurrer and motion to strike. On 7/5/24, APG filed a notice of joinder to the instant demurrer and motion to strike. On 9/30/24, Plaintiffs filed their opposition. On 10/4/24, Moving Defendants filed their reply.
DEMURRER
As a general matter, a¿party may demur to a pleading against it on the basis of any single or combination of eight enumerated grounds, including¿that¿“the pleading does not state facts sufficient to constitute a cause of action;” is uncertain, meaning “ambiguous and unintelligible;” or the pleading fails to assert whether an alleged contract is written, oral, or implied. (Code Civ. Proc., § 430.10, subds. (e), (f), and (g)).¿
In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Here, Moving Defendants¿demur to Plaintiffs’ first through fourth, and sixth through eighth causes of action on the bases that the TAC fails¿to allege facts sufficient to¿state¿those causes of action, rendering them fatally uncertain.
A. Meet-and-Confer
Moving Defendants’ counsel declares that on 6/10/24, he met and conferred with Plaintiffs’ counsel regarding the issues raised herein, but the parties were unable to come to a resolution. (Decl. of Adil M. Khan ¶ 12.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).
B. Breach of Contract
Plaintiffs’ first and second causes of action respectively allege Breach of Contract against Defendants with respect to the APG Agreement and the BPG Agreement. To state this cause of action, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Moreover, a demurrer may be raised if, “in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc. § 430.10, subd. (g).)
1. Statute of Frauds
Under the Statute of Frauds (Civil Code 1624), the following oral agreements are unenforceable: a lease agreement for a longer period than one year; and an agreement to loan money in any amount greater than $100,000. (Civ. Code 1624, subds. (a)(3), (a)(7).) Here, Moving Defendants correctly argue that to the extent that Plaintiffs allege that the APG and BPG Agreements were orally made, they violate the Statute of Frauds.
A party’s part performance of an oral contract otherwise in violation of the Statute of Frauds may allow for its enforcement if application of the Statute would “cause unconscionable injury. … [T]o constitute part performance, the relevant acts either must ‘unequivocally refer’ to the contract … or ‘clearly relate’ to its terms. … In addition to having partially performed, the party seeking to enforce the contract must have changed position in reliance on the oral contract to such an extent that application of the statute of frauds would result in an unjust or unconscionable loss, amounting in effect to a fraud.” (Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 555.)
Here, Plaintiffs allege that they “have performed all conditions, covenants, and promises required on their part to be performed in accordance with” the two subject agreements. (TAC ¶¶ 48, 53.) Specifically, as to the APG Agreement, Plaintiffs allege that “Bolding, as owner of JBS, submitted a Tier 1 Social Equity Application during Phase 2 of the DCR cannabis licensing process. He did so based on Levy and A-Perris Grow’s agreement to provide capital, warehouse space and financial support.” (Id. at ¶ 34.) Plaintiffs further allege that “Bolding performed his obligations under the BPG agreement by allowing B-Perris Grow and D-Perris Grow to use him and his status on their license applications, and by not requesting that the DCR cancel the license applications due to the false and unapproved representations about Bolding and JBS.” (Id. at ¶ 43.)
On reply, Moving Defendants argue that Plaintiffs cannot avail themselves of the part performance doctrine because “Plaintiffs identify nothing in the TAC alleging unconscionable injury.” (Defs.’ Reply 10:9.) The Court disagrees and finds it sufficient at the pleading stage that Plaintiffs have alleged that they “expended significant time, money, and energy attempting to obtain his licenses in 2018 and 2019, as alleged in detail above, and passed on other social equity license opportunities during Phase 2, based specifically on the promised support.” (TAC ¶ 71.) “Due to APG’s failure to provide the agreed-upon warehouse space, Plaintiffs were unable to receive temporary approval and, ultimately, never received their applied-for licenses.” (Id. at ¶ 36.)
Based on the foregoing, the Court finds that Plaintiffs have alleged facts sufficient to show that the subject agreements are not unenforceable under the Statute of Frauds, due to Plaintiffs’ alleged part performance of the obligations thereof.
2. Statute of Limitations
Moving Defendants further argue that Plaintiffs’ first and second causes of action are time-barred by the applicable statute of limitations. The statute of limitations for a breach of contract cause of action is two years. (Code Civ. Proc. § 339.) “Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements. … An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806–807 [quotations and citations omitted].) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Id. at 808.)
Here, as to the APG Agreement, Moving Defendants argue that “Plaintiffs claim this oral contract was formed in October 2018 (TAC ¶ 32), but they did not file this case until October 2021. Thus, the claim is time-barred.” (Dem. 14:4–5.) Plaintiffs argue in opposition that “the original complaint was filed within two years of the alleged breach, the beaches [sic] continue to this day, and Plaintiffs have also pleaded facts supporting the tolling of the limitations period due to Defendants’ concealment of their breaches until after October 5, 2019, confirming that the claim is timely.” (Pls.’ Opp. 5:3–6.)
As to the BPG Agreement, Moving Defendants argue that “Plaintiffs allege this agreement was formed in June 2019 (TAC ¶ 42), but they did not file this case until October 2021—more than two years later.” (Dem. 15:13–15.) Plaintiffs argue in opposition that “as with the APG Agreement, the original complaint was filed within two years of the alleged breach, the breaches continue to this day, and Plaintiffs have also pleaded facts supporting the tolling of the limitations period due to Defendants’ concealment of their breaches until after October 5, 2019, confirming that the claim is timely.” (Pls.’ Opp. 7:5–8.)
In reply, Moving Defendants observe that Plaintiffs allege their knowledge of Defendants’ breaches no later than June 2019, which would require the instant action to be filed by June 2021. (Defs.’ Reply 10:13–17, 11:19–21.) Moving Defendants further note that Plaintiffs have failed to allege facts to support their contention that the statute of limitations was tolled to 10/5/19. (Id. at 10:17–19, 11:21–22.) The Court agrees and finds no allegations in the TAC of any breaches past June 2019 or tolling by delayed discovery.
Based on the foregoing, the Court finds that Plaintiffs’ Breach of Contract causes of action, as pled, are time-barred by the applicable statute of limitations. Accordingly, the demurrer is sustained as to Plaintiffs’ first and second causes of action.
C. Breach of Implied Covenant of Good Faith and Fair Dealing
Plaintiffs’ third and fourth causes of action respectively allege Breach of the Implied Covenant of Good Faith and Fair Dealing against Defendants with respect to the subject agreements. Every contract contains an implied covenant of good faith and fair dealing that neither party will do anything to interfere with the other party’s right to receive the benefits of the agreement. (Howard v. American Nat’l Fire Ins. Co. (2010) 187 Cal.App.4th 498, 528.) The precise nature and extent of the duty depends on the nature and purpose of the underlying contract and the parties’ legitimate expectations arising from the contract. (Ibid.)
Here, the Court previously found that “given the above finding that Plaintiffs have failed to allege facts sufficient to support a finding that an enforceable contract exists between the parties, their second cause of action necessarily fails.” (12/23/22 Min. Order, p. 7.) Similarly, here, to the extent that Plaintiffs’ third and fourth causes of action derive from their first and second causes of action, they likewise fail. Accordingly, the demurrer is sustained as to Plaintiffs’ third and fourth causes of action.
D. Promissory Estoppel
Plaintiffs’ sixth cause of action alleges Promissory Estoppel against Defendants. The Court previously found that Plaintiffs alleged facts sufficient to constitute this cause of action. Here, Moving Defendants argue “that equitable claims, including statutory ones, are unavailable when the plaintiff has an adequate legal remedy for the same alleged harm.” (Dem. 16:14–15.)
Here, the Court previously found that Plaintiffs’ Promissory Estoppel cause of action is sufficiently pled, and Moving Defendants failed to assert their argument about equitable remedies in their previous demurrer. Accordingly, the Court declines to consider these new arguments, and reiterates its finding that Plaintiffs have alleged facts sufficient to constitute this cause of action. The demurrer is overruled as to Plaintiffs’ sixth cause of action.
E. Unfair Competition
Plaintiffs’ seventh cause of action alleges Unfair Competition against Defendants in violation of Business and Professions Code section 17200 et seq. (the “UCL”). To succeed on a claim for unfair business practices in violation of the UCL, a plaintiff must establish that the defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) “In essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.” (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.) A plaintiff alleging an “unfair” business practice under the UCL must show that the defendant’s conduct is “tethered to an underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law or violates the policy or spirit of an antitrust law.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613.) “‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘are likely to be deceived.’” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.)
“A UCL action is equitable in nature; damages cannot be recovered. … We have stated that under the UCL, ‘[p]revailing plaintiffs are generally limited to injunctive relief and restitution.’” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.) “The object of restitution is to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.” (Id. at 1149.) While restitution applies to funds in which a plaintiff had actual prior possession, or a vested interest, it does not apply when the plaintiff had a mere “expectancy” in the funds. (Id. at 1149–1150.)
Here, the Court sustained the previous demurrer to this cause of action, finding that while “Plaintiffs have sufficiently alleged facts to support a cause of action for a violation of the UCL under its ‘unfair’ prong,” “Plaintiffs fail to allege facts to support a request for either injunctive or restitutionary relief.” (12/23/22 Min. Order, pp. 11–12.) In their TAC, Plaintiffs added the following provision: “As a result of Defendants’ unlawful business practices, including through their fraudulent statements to Bolding and the DCR, and their unauthorized use of Bolding’s and JBS’s name and status to acquire nine commercial cannabis licenses, Defendants acquired valuable commercial cannabis licenses and money that belong in good conscience to Bolding and JBS.” (TAC ¶ 85.)
Moving Defendants argue that this amendment is insufficient because while Plaintiffs “allege that Bolding’s name was supposedly listed on the LBD Defendants’ license applications, … they allege no facts showing that he was ‘the source of the money received by [defendants]’ or that he provided any labor creating a property interest in his earned wages.” (Dem. 18:18–20.) Plaintiffs argue in opposition that “here, in response to the Court’s Ruling, Plaintiffs have corrected the deficiencies raised by the Court in the UCL claim … The TAC now includes an unjust enrichment claim and related allegations (TAC ¶ 85), addressing the Court’s previous concerns about restitutionary damages.” (Pls.’ Opp. 8:4–13.)
The Court agrees with Plaintiffs and finds that the TAC sufficiently resolves the deficiencies outlined by the Court in its ruling on the demurrer to Plaintiffs’ SAC. The Court reminds Moving Defendants that at the demurrer stage, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. Further investigation into the merits of Plaintiffs’ allegations may be completed during the discovery process. Based on the foregoing, the Court finds that Plaintiffs have sufficiently alleged ownership interest in the licenses and funds obtained by Defendants. Accordingly, the Court overrules the demurrer as to Plaintiffs’ seventh cause of action.
F. Unjust Enrichment
Plaintiffs’ eighth cause of action alleges Unjust Enrichment against Defendants. “The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.” (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769 [quotations and citations omitted.])
As a preliminary matter, the parties dispute whether the addition of Plaintiffs’ eighth cause of action falls within the scope of the Court’s order for Plaintiffs to amend their SAC following the hearing on Moving Defendants’ previous demurrer. Moving Defendants argue that Plaintiffs did not receive permission to add a new cause of action, while Plaintiffs argue that “the addition of the unjust enrichment claim here was a direct response to the court’s reason for sustaining the last demurrer, namely, that the complaint failed to sufficiently plead that an enforceable agreement existed between the parties.” (Pls.’ Opp. 3:15–18.) Plaintiffs therefore argue that “here, the unjust enrichment claim is clearly within the scope of the order granting leave to amend and based upon the same underlying facts and legal contentions set forth in the SAC.” (Id. at 2:23–25.)
The Court agrees with Plaintiffs, and notes that “if a plaintiff was uncertain as to whether the parties had entered into an enforceable agreement, the plaintiff would be entitled to plead inconsistent claims predicated on both the existence and absence of such an agreement,” including pleading a cause of action for unjust enrichment. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.) Based on the foregoing, the Court finds that Plaintiffs’ addition of this cause of action falls within the scope of the Court’s previous ruling granting leave to amend. Accordingly, the demurrer is overruled as to Plaintiffs’ eighth cause of action.
G. Uncertainty
Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)
Here, Moving Defendants argue that the subject causes of action are uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). In applying the stringent standard for demurrers filed on this ground, the Court finds that the complaint is not “so incomprehensible” that Moving Defendants cannot respond, especially given the extensive analyses they have argued against the pleading. Accordingly, the demurrer is overruled on this ground.
MOTION TO STRIKE
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.) Here, Moving Defendants move to strike: (a) Plaintiffs’ inclusion of defendant Levy as in their first through fourth, and sixth, causes of action; (b) Plaintiffs’ eighth cause of action in its entirety; and (c) Plaintiffs’ request for attorneys’ fees under Code of Civil Procedure § 1021.5.
A. Allegations Against Levy
Moving Defendants argue that “between the First and Second Amended Complaints, Plaintiffs narrowed their claims, including by voluntarily dismissing Mr. Levy from several claims.” (Dem. 9:27–28.) However, “along with expanding and altering the alleged facts (TAC ¶¶ 13-45), Plaintiffs added/re-added Mr. Levy to Counts 1, 2, 3, 4, and 6.” (Id. at 10:10–11.) “The Court granted no permission to add or re-insert Mr. Levy as a defendant to Counts 1, 2, 3, 4, and 6. … the Opposition is silent on this issue, thus waiving any argument and conceding the point.” (Defs.’ Reply 7:1–11.)
The Court agrees, and as Moving Defendants observe, Plaintiffs have failed to address this issue in their opposition. Accordingly, the Court grants Moving Defendants’ motion to strike Plaintiffs’ inclusion of Levy in their first through fourth, and sixth, causes of action (TAC p. 9, l. 9; p. 10, ll. 2, 22; p. 11, ll. 1, 3, 5, 10, 14, 19, 21, 23; p. 13, ll. 2).
B. Unjust Enrichment Cause of Action
To the extent that Moving Defendants move to strike Plaintiffs’ eighth cause of action for Unjust Enrichment on the basis that the Court did not grant Plaintiffs leave to add this cause of action, the Court has discussed this argument above, finding that Plaintiffs’ addition of this cause of action is within the scope of the leave granted to them to amend their SAC. Accordingly, the motion to strike Plaintiffs’ eighth cause of action is denied.
C. Attorney Fees
An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, the Court previously found that “Plaintiffs do not assert any contractual, statutory, or legal basis for their prayer to recover attorney fees. As stated above, Plaintiffs have likewise failed to allege facts entitling them to attorney fees under Code of Civil Procedure section 1021.5,” and struck Plaintiffs’ prayer for the same. (12/23/22 Min. Order, p. 13.)
Plaintiffs did not remove their prayer for attorney fees from their TAC. Moving Defendants therefore renew their motion to strike attorney fees from the TAC, arguing that “Plaintiffs have no legal basis to request attorneys’ fees.” (Dem. 19:8.) Plaintiffs argue in opposition that “the TAC includes sufficient facts to establish this claim, including allegations that the defendants have systematically and improperly taken advantage of governmental social equity programs to enrich themselves.” (Pls.’ Opp. 8:23–25, citing Code Civ. Proc. § 1021.5.)
Moving Defendants argue in reply that “rather than complying with the Prior Order, Plaintiffs just rehash their arguments about section 1021.5. … In doing so, Plaintiffs cite nothing in the TAC showing a public benefit from their pursuit of claims, and they ignore their allegations showing this is nothing more than a business dispute between private parties.” (Defs.’ Reply 5:21–24.) The Court agrees. Based on the foregoing, the Court grants Moving Defendants’ motion to strike Plaintiffs’ prayer for attorney fees from the TAC.
LEAVE TO AMEND
Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)
“In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” (Code Civ. Proc. § 430.41, subd. (e)(1).)
Here, the Court notes that Plaintiffs have now attempted to amend their complaint three times, yet the aforementioned defects remain. The Court notes that Plaintiffs make no request for further leave to amend their TAC, nor do they offer any showing that additional facts can be pleaded to cure the defects found within the TAC.
Accordingly, the Court denies Plaintiffs any further leave to amend the TAC.
CONCLUSION
The demurrer is overruled as to Plaintiffs’ sixth through eighth causes of action and sustained as to Plaintiffs’ first through fourth causes of action without leave to amend. The motion to strike is denied as to Plaintiffs’ eighth cause of action; and granted as to Plaintiffs’ inclusion of defendant Levy in their first through fourth, and sixth, causes of action, and as to Plaintiffs’ prayer for attorney fees without leave to amend.