Judge: Robert B. Broadbelt, Case: 22STCV09393, Date: 2023-09-29 Tentative Ruling

Case Number: 22STCV09393    Hearing Date: September 29, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Cross-defendants Pacifica Reliable Funding, Giora Agam, Nathan Agam, and Agam International, Inc.

RESPONDING PARTIES:    IC Funding, Inc., Nadav Ibi, Einat Rozenbaum, and Carmiel Cohen

Demurrer to First Amended Cross-Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

BACKGROUND

Plaintiff Pacifica Reliable Funding, LLC (“Pacifica”) filed the operative Second Amended Complaint in this action against defendants IC Funding, Inc., Nadav Ibi, Einat Rozenbaum, and Carmiel Cohen on January 13, 2023, alleging six causes of action for (1) breach of contract; (2) money had and received; (3) conversion; (4) breach of guaranty; (5) breach of guaranty; and (6) breach of guaranty.

IC Funding, Inc., Nadav Ibi, Einat Rozenbaum, and Carmiel Cohen (“Cross-Complainants”) filed a Cross-Complaint on February 1, 2023, and thereafter, on March 15, 2023, filed their operative First Amended Cross-Complaint against Pacifica, Giora Agam (“G. Agam”), Nathan Agam (“N. Agam”), and Agam International, Inc. (collectively, “Cross-Defendants”).  The First Amended Cross-Complaint alleges two causes of action for (1) breach of contract, and (2) fraud.

Cross-Defendants now move the court for an order sustaining their demurrer to each cause of action alleged in the First Amended Cross-Complaint.

DISCUSSION

The court overrules Cross-Defendants’ demurrer to the first cause of action for breach of contract because it can be ascertained from the First Amended Cross-Complaint that the settlement agreement is written since Cross-Complainants have alleged that (1) Cross-Defendants “represented in writing” that they would dismiss the first lawsuit if Cross-Complainants agreed to several terms; (2) cross-complainants Ibi and Rozenbaum represented that the terms of the proposed settlement were agreeable, and the conversation was “reduced . . . to writing[;]” and (3) Cross-Defendants “forwarded the proposed settlement agreement” to Cross-Complainants, which (4) Cross-Complainants executed on May 15, 2019.  (Code Civ. Proc., § 430.10, subd. (g); FACC ¶¶ 29-32.) 

The court also notes that, in their pleading, Cross-Complainants have referenced the settlement agreement as “attached to [the] originally filed Cross-complaint as Exhibit 1[.]”  (FACC ¶ 32.)  The court agrees that, as noted by Cross-Defendants, the original cross-complaint has been superseded by the First Amended Cross-Complaint and therefore this reference is insufficient.  (Malear v. State (2023) 89 Cal.App.5th 213, 221 [“‘An “amended” complaint supersedes all prior complaints’ [citation], and ‘the original complaint ceases to have any effect either as a pleading or as a basis for judgment’”] [internal citation omitted].)  However, the court has concluded that Cross-Complainants have sufficiently alleged facts that allow the court and the parties to ascertain that the subject agreement was written.

The court overrules cross-defendant Agam International, Inc.’s demurrer to the first cause of action for breach of contract because it states facts sufficient to constitute a cause of action against that defendant since Cross-Complainants have sufficiently alleged (1) that all Cross-Defendants, including Agam International, Inc., represented that they would dismiss the lawsuit against Cross-Complainants, and (2) the terms of the settlement agreement, i.e., that Cross-Defendants would dismiss the lawsuit against them and Pacifica would release Cross-Complainants from the guarantees if the Cross-Complainants agreed (i) to an even split of interest collected, (ii) that IC Funding, Inc. would be credited $21,320.59 of monies held by Pacifica against monies in the amount of approximately $29,000 being held by IC Funding, Inc., (iii) that IC Funding, Inc. would forward future payments received, and (iv) IC Funding, Inc. would sign titles of 57 performing loans to Pacifica and forward borrower records on the same.  (Code Civ. Proc., § 430.10, subd. (e); FACC ¶ 29.)  The court notes that, in reply, Cross-Defendants reference specific terms and portions of the settlement agreement as attached to the original Cross-Complaint.  However, as set forth above, this document is not attached to the First Amended Cross-Complaint and the parties did not request that the court take judicial notice of the original Complaint.

The court overrules Cross-Defendants’ demurrer to the second cause of action for fraud because it states facts sufficient to constitute a cause of action since Cross-Complainants have alleged, with sufficient particularity, (1) Cross-Defendants, by and through their agents N. Agam and G. Agam, made representations (i) in writing, on May 9, 2019, that they would dismiss the lawsuit against Cross-Complainants if they agreed to certain terms, and (ii) telephonically, on May 9, 2019, that they would dismiss the lawsuit with the expectation that IC Funding, Inc. would execute the agreement and sign over the titles to the vehicles; (2) Cross-Defendants made those representations “without any intention to perform and with further intention to deny the very existence of these representations[;]” (3) Cross-Defendants made the representations with the intent to induce reliance thereon, (4) which Cross-Complainants justifiably relied on to their detriment; (5) Cross-Defendants did not perform; and (6) Cross-Complainants have been damaged by the nonperformance.  (Code Civ. Proc., § 430.10, subd. (e); Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 654 [setting forth elements of cause of action for promissory fraud]; Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243 [“ ‘“[T]he courts should not . . . seek to absolve the defendant from liability on highly technical requirements of form in pleading.  Pleading facts in ordinary and concise language is as permissible in fraud cases as in any others, and liberal construction of the pleading is as much a duty of the court in these as in other cases” ’”]; FACC ¶¶ 50, 29-30, 51, 53, 52, 54.)

ORDER

The court overrules cross-defendants Pacifica Reliable Funding, Giora Agam, Nathan Agam, and Agam International, Inc.’s demurrer to cross-complainants IC Funding, Inc., Nadav Ibi, Einat Rozenbaum, and Carmiel Cohen’s First Amended Cross-Complaint.

The court orders cross-defendants Pacifica Reliable Funding, Giora Agam, Nathan Agam, and Agam International, Inc. to file an answer to cross-complainants IC Funding, Inc., Nadav Ibi, Einat Rozenbaum, and Carmiel Cohen’s First Amended Cross-Complaint within 10 days of the date of this order.

The court orders cross-complainants IC Funding, Inc., Nadav Ibi, Einat Rozenbaum, and Carmiel Cohen to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 29, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court