Judge Daniel M. Crowley, Case Number: 23STCV02687, Date: 2023-11-01 Tentative Ruling

Defendants Dorcy, Inc. dba Conscious Co-Parenting Institute’s and Dorcy Pruter’s demurrer to Plaintiffs Jenna Noble’s, Michael Eisenberg’s, and Eisenberg & Associates’ first amended complaint is sustained with 20 days leave to amend as to the 2nd cause of action, and sustained without leave to amend as to the 1st and 4th causes of action.

Defendants Dorcy, Inc. dba Conscious Co-Parenting Institute (“Conscious Co-Parenting”) and Dorcy Pruter (“Pruter”) (collectively, “Defendants”) demur to the 1st, 2nd, and 4th causes of action in Plaintiffs Jenna Noble’s (“Noble”), Michael Eisenberg’s (“Eisenberg”), and Eisenberg & Associates’ (“E&A”) (collectively, “Plaintiffs”) first amended complaint (“FAC”).[1] (Notice of Demurrer, pg. 2.)

Defendants’ 1/22/24 request for judicial notice of (1) Joint Stipulation Re: Continuing Dates in Scheduling Order to Facilitate Global Resolution of the Case, filed August 13, 2021, in United States District Court – C.D. Cal. Case No. 2:19-cv-8646 ODW (JPRx) (Document No. 189) (D-RJN, Exh. 1); and (2) Civil Minutes – General, minute order dated August 13, 2021, in United States District Court – C.D. Cal. Case No. 2:19-cv-8646 ODW (JPRx) (Document No. 190) (D-RJN, Exh. 2), is granted.

Plaintiffs filed their initial complaint on February 7, 2023. On November 21, 2023, Plaintiffs filed the operative FAC alleging four causes of action: (1) breach of contract; (2) intentional misrepresentation, fraud in the inducement; (3) promissory estoppel; and (4) declaratory relief.

This action arises out of Noble’s employment by Defendants from around May 2018 until her termination on June 18, 2019. (FAC ¶9.) Plaintiffs allege during Noble’s employment she was not paid all of the agreed upon commissions she was entitled to. (FAC ¶10.) Plaintiffs allege during Noble’s employment she suffered from sexually harassing conduct and battery by her supervisor, Pruter, that was severe and/or pervasive. (FAC ¶11.)

Plaintiffs allege Noble complained about the sexually harassing conduct to the police in Lloydminster, Alberta, Canada. (FAC ¶12.) Plaintiffs allege after Noble complained to the police, she was terminated in retaliation for her complaints on or about June 18, 2019. (FAC ¶13.)

Plaintiffs allege Noble sued Defendants for wrongful termination and other causes of action and litigated her case in United States District Court, Case No. 2:19-cv-08646 ODW (JPRx) before Hon. Otis D. Wright, II (“Underlying Action”). (FAC ¶14.) Plaintiffs allege Noble was represented by E&A in the Underlying Action. (FAC ¶14.)

Plaintiffs allege on August 12, 2021, the parties entered into a conditional Settlement Agreement and Mutual General Release (“Agreement”), pursuant to which Defendants agreed to pay Plaintiffs $75,000 twenty-one days after the execution of the Agreement via a single check to payable to E&A’s Client Trust Account, which was to be delivered to Eisenberg’s office located at 3580 Wilshire Blvd., Suite 1260, Los Angeles, CA 90010. (FAC ¶15, Exh. A.)

Plaintiffs allege by entering into the Agreement, Defendants agreed to remit the settlement funds to Eisenberg as an express intended third-party beneficiary of the Agreement for the payment of his earned attorney’s fees. (FAC ¶16.) Plaintiffs allege the Agreement was conditional on a dismissal with prejudice of criminal charges against Pruter by the Canadian Crown Attorneys’/Prosecutor’s Office (Information Number 19-75005953). (FAC ¶17.) Plaintiffs allege if this condition was not satisfied within fourteen (14) days of the full execution of the Agreement (i.e., by August 26, 2021), the Agreement would be deemed null and void. (FAC ¶17.)

Plaintiffs allege as part of the Agreement, the parties also entered into a stipulation and filed a corresponding proposed order on August 13, 2021, which requested a continuing of pending scheduling order deadlines to facilitate the settlement. (FAC ¶18.) Plaintiffs allege a true and correct copy of the August 13, 2021, stipulation and proposed order is attached to the Agreement as Exhibit B within the Agreement. (FAC ¶18.) Plaintiffs allege the stipulation represented to the court that “[t]he parties have signed and exchanged a written settlement agreement (potentially resolving all pending claims between the parties) specifying several events that must occur over the next month in order to complete the settlement terms.” (FAC ¶19.)

Plaintiffs allege as part of the Agreement, Noble agreed to present a written request for a full and complete dismissal with prejudice of all criminal claims, charges, warrants against Pruter, in the form of the letter attached as Exhibit C to the Agreement, to the Toronto Crown Attorney/ Prosecutor’s Office and the Toronto Law Enforcement Office. (FAC ¶20.) Plaintiffs allege upon signing the Agreement, Plaintiffs immediately began working towards executing their obligations thereunder and contacted Detective Rich Petrie, who works in 52nd Division of the Toronto Police Service as a Detective (No. 2232). (FAC ¶21.)

Plaintiffs allege on August 12, 2021, Noble signed and Plaintiffs emailed the exact letter from Exhibit C of the Agreement to Detective Rich Petrie of the Toronto Police Service, which stated “I hereby request a full and complete dismissal with prejudice of all criminal claims, charges, warrants against Dorcy Pruter pertaining to my allegations against her (Information Number 19-75005953). I further request written confirmation of the dismissal with prejudice of the above referenced criminal charges.” (FAC ¶22.)

Plaintiffs allege on August 13, 2021, Detective Rich Petrie emailed both E&A and counsel for Defendants confirming that he had “completed the withdrawal request and had it approved by a Crown Attorney.” (Complaint ¶23.) Plaintiffs allege Detective Petrie also confirmed that the proper department for Noble to bring her criminal allegations against Pruter was and is still the Toronto Police Service. (FAC ¶23, Exh. B.)

Plaintiffs allege on August 20, 2021, Detective Rich Petrie emailed E&A stating that he had spoken with the Assistant Crown Attorney and received authorization from her to withdraw the criminal charge of sexual assault against Pruter. (FAC ¶24.) Plaintiffs allege Detective Petrie also made clear that once a criminal charge is withdrawn, the charge is permanently closed and will not be prosecuted. (FAC ¶24.) Plaintiffs allege E&A forwarded this email to counsel for Defendants explaining that once the Crown Attorney withdrew the criminal charges against Pruter, all conditions precedent would be satisfied, and payment would be due on September 2, 2021. (FAC ¶24, Exh. C.) Plaintiffs allege on August 26, 2021, E&A found out that the charges against Pruter were dismissed. (FAC ¶25.) Plaintiffs allege E&A immediately forwarded the confirmation of the dismissal to counsel for Defendants. (FAC ¶25, Exh. D.)

Plaintiffs allege on August 27, 2021, Detective Rich Petrie emailed a confirmation that the Crown Attorney had withdrawn all criminal charges on August 26, 2021, and confirmed that the criminal matter against Pruter was permanently closed. (FAC ¶26.) Plaintiffs allege that same day, E&A copied counsel for Defendants on his response email to Detective Petrie so that Defendants would be assured that the criminal charges against Pruter were dropped. (FAC ¶26.)

Plaintiffs allege on August 31, 2021, counsel for Defendants emailed E&A doubting that the dismissed charges against Pruter were “with prejudice.” (FAC ¶27.) Plaintiffs allege E&A responded on September 1, 2021, and reiterated that per Detective Petrie, the charges were permanently closed and could not be prosecuted and therefore Defendants’ payment was due the next day under the Agreement. (FAC ¶27, Exh. E.) Plaintiffs allege as far as they understood, the criminal charges against Pruter were dismissed “with prejudice.” (FAC ¶28.) Plaintiffs allege Defendants had a criminal attorney in Canada and knew there is no such terminology as “dismissal with prejudice” in the Canadian court system. (FAC ¶29.) Plaintiffs allege nonetheless, Defendants requested this language to be included in the Agreement. (FAC ¶29.) Plaintiffs allege thus, Defendants knew that Plaintiffs could only substantially perform under the verbatim wording of the Agreement, which Plaintiffs did. (FAC ¶29.)

Plaintiffs allege on September 9, 2021, E&A and counsel for Defendants discussed that Plaintiffs have performed their obligations under the agreement, that the terminology “with prejudice” did not exist in the Canadian court system, and that Defendants’ promised $75,000 payment was owing. (FAC ¶30.) Plaintiffs even offered to amend the Agreement to state that if Plaintiff ever attempted to do the impossible and refile the same charges against Pruter, Plaintiff would be required to pay back the full settlement amount plus interest. (FAC ¶30.)

Plaintiffs allege despite receiving notice that Plaintiffs satisfied all conditions precedent for Defendants to pay the settlement funds pursuant to the Agreement, Defendants refused to honor their obligations thereunder and breached the Agreement. (FAC ¶31.) Plaintiffs allege on information and belief that Defendants entered into the Agreement without ever intending to honor their obligations thereunder. (FAC ¶32.) Plaintiffs allege rather, Defendants entered into the Agreement solely to induce Plaintiffs to dismiss both the criminal charges against Pruter in Canada, as well as the Underlying Action. (FAC ¶32.)

Plaintiffs allege on October 5, 2021, Plaintiffs filed a Motion to Enforce Settlement Agreement, or in the Alternative, for a New Scheduling Order in the Underlying Action. (FAC ¶33.) Plaintiffs allege on October 12, 2021, Judge Otis D. Wright, II ruled in the Underlying Action that “[t]he Court has no interest in monitoring parties’ compliance with the terms of a settlement agreement. Given that the parties have settled the matter, this case should be dismissed. Any failure to satisfy the terms of the parties’ settlement agreement, including payment, should be enforced in a subsequent lawsuit. The Clerk of the Court shall close this case.” (FAC ¶34, Exh. F.) Plaintiffs allege they now bring this action to enforce the Agreement per the federal court’s instructions. (FAC ¶35.)

On November 1, 2023, this Court overruled Defendants’ demurrer to Plaintiffs’ 3rd cause of action, and sustained Plaintiffs’ demurrer to the 1st, 2nd, and 4th causes of action with 20 days leave to amend.

On January 22, 2024, Defendants filed the instant demurrer. On February 15, 2024, Plaintiffs filed their opposition. On February 22, 2024, Defendants filed their reply.

Defendants demur on the basis that Plaintiffs’ 1st, 2nd, 3rd, and 4th causes of action fail state facts sufficient to constitute causes of action. (Demurrer, pgs. 2-3; C.C.P. §430.10(e).)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a).) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendants’ counsel’s declaration states that on December 22, 2023, he spoke to Plaintiffs’ counsel on the telephone addressing deficiencies in the Complaint and parties could not resolve the issues in this motion outside of court. (Decl. of Abbott ¶2.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41(a)(3).

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

A cause of action for breach of contract requires the following elements: (1) a valid contract; (2) substantial performance by the plaintiff; (3) the defendant’s failure to perform; and (4) damages. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Plaintiffs allege they and Defendants entered into a binding Agreement as explained above. (FAC ¶39, Exh. A.) Plaintiffs allege they performed, or substantially performed, all obligations required of them under the Agreement, or were excused or prevented from performing such obligations. (FAC ¶40.) Plaintiffs allege Defendants failed to pay any amount pursuant to the Agreement. (FAC ¶41.)

Plaintiffs allege Defendants breached the Agreement when they refused to pay the amounts owed to Plaintiffs under the Agreement. (FAC ¶42.) Plaintiffs allege they have suffered damages as a result of the Defendants’ breaches in an approximate amount of seventy-five thousand dollars ($75,000.00), which continues to accrue interest at the legal rate, plus attorney’s fees and costs as a result of needing to bring this new action. (FAC ¶43.)

Plaintiffs allege section nine of the Agreement provides for attorney’s fees, expenses and costs to be paid to the prevailing party in any action to enforce the Agreement. (FAC ¶44.) Plaintiffs request their attorneys’ fees and costs for having to enforce the Agreement. (FAC ¶44.)

It is undisputed that under the subject settlement agreement, Defendants’ performance is conditioned on the dismissal of certain criminal charges. (FAC ¶¶2-3, Exh. “A.) The dismissal of the charges is the central proposition of the agreement; without them, there is no obligation to pay any settlement amount or dismiss any claims.

Regarding severance, “[c]ourts are to look to the various purposes of the contract. If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 124.) In particular, if the consideration given by one side is illegal, the illegal provision cannot be severed because then the contract would lack the necessary consideration. (Id. at pg. 122.) Civil Code §1608 provides that “[i]f any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void.” “[W]here the illegal consideration goes to the whole of the promise, the entire contract is illegal.” (McIntosh v. Mills (2004) 121 Cal.App.4th 333, 344.)

Here, the dismissal of the criminal charges was central to the Agreement. Plaintiffs allege that “Plaintiff agreed to dismiss both the Canadian criminal charges and the Underlying Action” in exchange for a single $75,000 payment. (FAC ¶50.) Plaintiffs’ non-contractual claims likewise focus on the dismissal of the criminal charges as Noble’s primary contribution to the agreement. (FAC ¶65.) Even if there are other, non-illegal objects of an agreement, if the illegal act is an “integral part” of the agreement, the contract is void. (Armendariz, 24 Cal.4th at pg. 123.) This is true even when the contract contains a severance provision. (D’sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927, 931.)

Here, the unlawful act here was an “integral” part of the agreement. Under the Agreement’s express terms, both parties’ obligations are contingent on the dismissal of the criminal charges. The agreement expressly provides that the entire contract “will be null and void and of no effect” if the criminal charges are not dismissed. (FAC, Exh. A at ¶4.) Further, the payment of $75,000 is “contingent on the actual dismissal with prejudice of the Criminal Charges.” (FAC, Exh. A at ¶4.) The dismissal of the Underlying Action is also conditioned on the dismissal of the criminal charges and the payment of the settlement amount (which itself is also contingent on the dismissal of the charges). (FAC, Exh. A at ¶2.) The parties’ mutual releases are conditioned on the settlement payment, which again is conditioned on the dismissal of the charges. (FAC, Exh. A at ¶5.)

Further, Penal Code §1378 provides that if an injured person “appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom.” (Pen. Code §1378.) Penal Code §1379 provides that “[n]o public offense can be compromised, nor can any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this Chapter.” (Pen. Code §1379.) The California Supreme Court further explained the statutes in Hoines v. Barney’s Club, Inc.:

Those sections [Penal Code Sections 1377 and 1378] provide for the limited circumstances where a person, injured by a misdemeanant, can assert a civil claim. (s 1377.) If the injured person in such an instance appears in criminal proceedings and acknowledges he has received satisfaction for his injuries, the court may stay such proceedings and discharge the defendant in accordance with procedures set out in section 1378.

Here, Plaintiffs fail to allege that Defendants appeared “in criminal proceedings” pursuant to Penal Code §§1377 and 1378, because no such criminal proceedings occurred. Neither statute provides for “substantial compliance,” and Plaintiffs could not have substantially complied when they never appeared in criminal proceedings.

Plaintiffs seek to directly enforce an illegal contract. Penal Code §153 states that it is illegal to take money and in exchange “abstain from any prosecution [of a crime].” Likewise, the California Supreme Court has held that “an agreement not to prosecute a person for a crime is illegal and void.” (Bowyer v. Burgess (1960) 54 Cal.2d 97, 100; see People v. Moulton (1982) 131 Cal.App.3d Supp.10, 19-20 [“Indeed, it is generally considered to be a criminal offense to condition settlement of a civil claim upon nonprosecution of a criminal action. (Pen. Code, § 153; Bowyer v. Burgess (1960) 54 Cal.2d 97, 100.) It is only when there has been compliance with a civil compromise statute authorizing a settlement under the supervision of the court that such a disposition is permitted.”].) As such, the contract at issue is unenforceable.

Accordingly, Defendants’ demurrer to Plaintiffs’ 1st cause of action is sustained without leave to amend.

“The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) 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. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Plaintiffs allege they and Defendants entered into the Agreement on or about August 12, 2021. (FAC ¶54.) Plaintiffs allege Defendants agreed to pay Plaintiffs the sum of $75,000.00 as full settlement of all claims arising from the Underlying Action and in consideration of Noble agreeing to dismiss the criminal charges against Pruter in Canada. (FAC ¶55.)

Plaintiffs allege they agreed to dismiss both the criminal charges against Pruter in the Canadian criminal court system, as well as the Underlying Action, in consideration of receiving the $75,000.00 settlement amount. (FAC ¶56.) Plaintiffs allege they performed all, or substantially all, of the obligations that the settlement Agreement required them to do. (FAC ¶57.) Plaintiffs allege Defendants failed to satisfy the terms of the Agreement by refusing to pay the sum owed to Plaintiffs. (FAC ¶57.)

Plaintiffs allege on their belief that Defendants entered into the Agreement on August 12, 2021, without the true intention to fulfill the $75,000.00 payment owed to Plaintiffs. (FAC ¶59.) Plaintiffs allege Defendants have not made a good faith attempt to render payment of the settlement to Plaintiffs and have led Plaintiffs to believe that Defendants never intended to fulfill the Agreement, but rather pushed for settlement solely to lock Plaintiffs in to an agreed upon settlement price for the Underlying Action and to achieve the permanent dismissal of the criminal charges against Pruter. (FAC ¶60.)

Plaintiffs allege Defendants have acted intentionally and dishonestly by not fulfilling their legal and contractual obligations under the Agreement. (FAC ¶61.) Plaintiffs allege Defendant’s entrance into the Agreement and subsequent failure to pay on the terms were done in bad faith. (FAC ¶62.) Plaintiffs allege the conduct of each of the Defendants was fraudulent, malicious, and oppressive as defined in California Civil Code Section 3294, and, in addition to actual damages, Plaintiffs should recover punitive and exemplary damages to make an example of and to punish Defendants. (FAC ¶63.)

Plaintiffs allege as a result of Defendants’ fraudulent inducement to enter into the Agreement that Defendants never complied with, E&A did substantial work for Noble, including multiple filings in the Underlying Action, to enforce the settlement agreement or continue with the Underlying Action. (FAC ¶64.) Plaintiffs allege they also hired new counsel to bring this case to enforce the Agreement. (FAC ¶64.) Thus, Plaintiffs also request damages for attorneys’ fees and costs incurred in an attempt to enforce the Agreement. (FAC ¶64.)

Plaintiffs fail to allege actual damages in connection with Defendants’ alleged fraud. A plaintiff “must suffer actual monetary loss to recover on a fraud claim.” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240; see also Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 810 n.2 [“Fraud without damage furnishes no ground for action.”]; Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252 [“To recover damages for fraud, a plaintiff must have sustained damages proximately caused by the misrepresentation.”].) “In California a defrauded party is ordinarily limited to recovering his ‘out-of-pocket’ loss, i.e., the difference between the value he parted with and the value he received.” (Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 53.) Plaintiffs’ damages are “limited to recovering what he lost through reliance on the false promise.” (Id.) Therefore, Plaintiffs cannot assert the $75,000 settlement payment, which they never had or paid, as damages for fraud. Accordingly, Defendants’ demurrer to Plaintiff’s 2nd cause of action for intentional misrepresentation is sustained with 20 days leave to amend.

To state a claim for declaratory relief, a party must allege facts stating: (i) a proper subject of declaratory relief, e.g., a contract or property; and (ii) an actual controversy between two parties regarding their rights. (C.C.P. §1060; Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.)

Plaintiffs allege they performed all, or substantially all, of the obligations that the Agreement required them to do. (FAC ¶79.) Plaintiffs allege Defendants contend that Defendants are excused from paying Plaintiffs under the Agreement because the dismissal of the criminal charges against Pruter in Canada did not include the words “with prejudice,” even though Defendants know that the Canadian justice system does not use that terminology. (FAC ¶79.) Plaintiffs allege instead, Defendants have received assurances from Detective Rich Petrie who was assigned to the criminal case against Pruter in Canada and from the Canadian Deputy Crown Attorney Jennifer Gibson, that once a particular criminal charge is dismissed, it cannot be filed again against the same Defendant. (FAC ¶79.)

Plaintiffs allege they seek a judicial determination Defendants waived any argument that the Agreement was null and void due to its failure to attempt to continue the Underlying Action. (FAC ¶80.) Plaintiffs allege Defendants should be estopped from arguing the Agreement was null and void due to its prior attempts to dismiss the Underlying Action. (FAC ¶80.)

Plaintiffs fail to sufficiently assert a cause of action in the alternative for a declaration that Plaintiffs can again pursue Noble’s claims against Defendants from the Underlying Action for a second time. The purpose of declaratory relief is to determine a plaintiff’s “rights or duties with respect to another . . . in cases of actual controversy.” (Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 530.) When a declaratory relief action attempts “to obtain an advisory opinion from the court, the fundamental basis of declaratory relief is lacking.” (Rhonda S. v. Kaiser Foundation Health Plan, Inc. (2023) 94 Cal.App.5th 643, 648.) As stated above, the Court regards the Agreement as unenforceable.

Accordingly, Defendants’ demurrer to Plaintiff’s 4th cause of action for lack of informed consent is sustained without leave to amend.

Defendants’ demurrer to Plaintiffs’ FAC is sustained without leave to amend as to the 1st and 4th causes of action

Defendants’ demurrer to Plaintiffs’ FAC is sustained with 20 days leave to amend as to the 2nd cause of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendants do not demur to Plaintiffs’ 3rd cause of action.