Judge: Kimberly Knill, Case: 30-2022-01269337-CU-RI-CJC, Date: 2023-08-18 Tentative Ruling

Defendants LaVine & Associates CPAs, Inc., Jon M. LaVine, and Lois W. Williams’ Motion to Strike Portions of Second Amended Complaint

The Motion to Strike Portions of Second Amended Complaint (SAC) by Defendants LaVine & Associates CPAs, Inc., Jon M. LaVine, CPA, and Lois W. Williams, CPA is GRANTED in part and DENIED in part.

Defendants move to strike the entirety of the fourth, fifth, and sixth causes of action on grounds Plaintiffs added these causes of action to the SAC without leave of Court. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [following order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, plaintiff may amend complaint only as authorized by the order].)

Here, Plaintiffs filed their SAC on 4/24/2023 without obtaining leave of court to insert additional causes of action.

The court ORDERS the fourth and sixth causes of action in the SAC stricken as to all defendants named therein.  The court declines to strike the fifth cause of action, because it is alleged against defendants Nexus Development Corporation and NDC, Long Beach, LLC only, not moving defendants.

Moving defendants to give notice.

Defendants LaVine & Associates CPAs, Inc., Jon M. LaVine, and Lois W. Williams’ Demurrer to Second Amended Complaint

The Demurrer of Defendants LaVine & Associates CPAs, Inc., Jon M. LaVine, CPA, and Lois W. Williams, CPA, to Plaintiffs’ Second Amended Complaint (SAC) is OVERRULED.

Plaintiff’s request for judicial notice is GRANTED.

Defendants demur to the fourth, sixth, seventh, and eighth causes of action in the SAC.  The demurrers to the fourth and sixth causes of action are moot, because those causes of action have been stricken.

Seventh Cause of Action – Unfair Business Practices

“A claim made under section 17200 is not confined to anticompetitive business practices, but is also directed toward the public's right to protection from fraud, deceit, and unlawful conduct. Thus, California courts have consistently interpreted the language of section 17200 broadly. Section 17200 definition is disjunctive, the statute is violated where a defendant's act or practice is unlawful, unfair, fraudulent or in violation of section 17200.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1007) (cleaned up).)

Plaintiff adequately alleges civil RICO in the third cause of action.

Eighth Cause of Action – Negligence

Plaintiffs have standing to sue as beneficiaries of the trust. (Wolf v. Mitchell, Silberburg & Knupp (1999) 76 Cal.App.4th 1030, 1039; City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 467 [“trust beneficiaries may bring suit on their direct claims against third persons who have actively participated with a trustee in a breach of trust for their own financial advantage, whether by inducing, aiding or abetting the trustee's breach of duty, or by receiving trust property from the trustee in knowing breach of trust”].)

Moving defendants to file an answer within 20 days.

Moving defendants to give notice.