Judge: Kevin C. Brazile, Case: 22STCV26587, Date: 2023-01-25 Tentative Ruling

Hearing Date: January 25, 2023

Case Name: Simmons Unlimited, LLC v. Izydorczyk, et al.

Case No.: 21STCV43407 

Matter: Demurrer; Motion to Strike

Moving Party: Cross-Defendants Simmons Unlimited, LLC and Imani Simmons

Responding Party: Cross-Complainant Dejanee Riley Izydorczyk

Notice: OK

Ruling: The Demurrer is sustained, without leave to amend.  A proposed 

order is to be filed within ten days.

The Motion to Strike is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

1. Background

On November 24, 2021, Plaintiff Simmons Unlimited, LLC filed the operative Complaint against Defendants Dejanee Riley Izydorczyk (“Riley”), Gabriella McNeill, and Deja Riley Athletics, LLC (“DRA”) for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) fraud—intentional misrepresentation, (4) fraud—negligent misrepresentation, (5) intentional interference with contract, (6) intentional interference with prospective economic advantage, (7) negligent interference with prospective economic advantage, (8) unjust enrichment, (9) accounting, (10) constructive trust, and (11) declaratory relief.  

The allegations of the Complaint are as follows.  Plaintiff is a brand manager who entered into an agreement to provide services for Defendant Riley, who is a fitness celebrity.  Plaintiff was able to bring together a long-term, six-figure brand partnership with Lululemon/Mirror.  Immediately before this deal closed, Defendant Riley wrongfully terminated the subject management agreement with Plaintiff and declined to pay any commissions resulting from the Lululemon/Mirror deal.  Defendant Gabriella McNeill is a friend of Riley and worked as her “managing director”, although she had virtually no experience in the industry.  McNeill excluded Plaintiff from various communications with Lululemon/Mirror and ultimately sought to terminate Plaintiff’s relationship with Riley.  DRA is Riley’s loan-out company and alter ego.  DRA was ultimately used to circumvent payment of commissions to Plaintiff. 

On October 11, 2022, Riley filed a Second Amended Cross-Complaint (“SACC”) for (1) intentional misrepresentation and (2) negligent misrepresentation.  Riley alleges that Cross-Defendants Simmons Unlimited, LLC and Imani Simmons made the following misrepresentations, which caused Riley to enter into a management agreement with Cross-Defendants: 

1. In or around August 2020, both telephonically and in-person in Los Angeles, California, Imani Simmons represented to Cross-Complainant that Cross-Defendantshad personally worked with and personally managed multiple “big name” brands and talent including, but not limited to, Jagermeister and “big name” musical artists and further represented that Cross-Defendants had personally secured large deals for them.

2. In or around August 2020, at a restaurant in North Hollywood, California where a meeting took place between Cross-Defendants and Riley, Imani Simmons also represented to Cross-Complainant that Cross-Defendants personally had connections to secure large deals for Cross-Complainant and were working on a deal with Jagermeister for Cross-Complainant amidst other deals for Cross-Complainant that Cross-Defendants failed to specify. 

3. In or around this same time in 2020, at a hotel in Los Angeles, California where a meeting took place between Cross-Defendants and Riley, Imani Simmons represented to Cross-Complainant that Ms. Simmons and Simmons Unlimited was an established and experienced brand manager with several clients.

2. Demurrer 

Cross-Defendants Simmons Unlimited, LLC and Imani Simmons demur to the SACC for failure to state sufficient facts.  Specifically, they argue that the SACC is not pled with particularity.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

“The elements of fraud, which give rise to the 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.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, internal quotation marks omitted.) 

“[F]raud must be pled specifically; general and conclusory allegations do not suffice. [Citations] Thus the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.  This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, internal quotation marks omitted.)  

“Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.”  (Fox v. Pollack (1986) 181 Cal. App. 3d 954, 962.)

A negligent misrepresentation claim should also be pled with specificity.  (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14.) 

Previously, the Court stated, “there is no specific allegation of what damages were suffered.  Further, for the alleged misrepresentation that Cross-Defendants had secured large deals with large brands, there is no allegation of where or how this misrepresentation was tendered.  Further, it is not apparent that a misrepresentation claim can be based on an assertion that one is ‘established and experienced’ as this seems to be an opinion or puffery.  (See Cal. Prac. Guide Civ. Pro. Trial Claims and Def. Ch. 14(I)-B [‘Generalized, vague assertions of superiority that do not make specific claims about a product or service may be regarded as ‘mere puffery’ upon which a reasonable consumer could not rely, and hence are not actionable as ‘fraudulent’ business practices or false advertising.’].)”

On the issue of damages, the SACC now merely provides that “Cross-Complainant was harmed and has suffered, and continues to suffer, damages including, but not limited to, financial losses from any and all monies spent and/or costs incurred as a result of Cross-Complainant’s reliance on CrossDefendants’ representations; loss of business opportunities and deals; loss of opportunity to pursue other management; damages to reputation; any and all other out-of-pocket and/or benefit-of-the-bargain damages; attorney’s fees and costs incurred in connection with this action or proceeding; and mental and emotional distress and discomfort, all to Cross-Complainant’s damage in an amount to be proven at trial.”

There is no specificity for any of the above damages, and it is not apparent why Cross-Complainant would suffer only emotional distress damages due to misrepresentations about Cross-Defendants’ experience.  

 Thus, the Demurrer is sustained.  Because Cross-Complainant has shown she cannot cure the damages issue, leave to amend is denied.  The Request for Judicial Notice is granted.

3. Motion to Strike

Given the ruling on the demurrer, Cross-Defendants’ Motion to Strike is denied as moot.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.