Judge Salvatore Sirna, Case 22PSCV00774 2023-03-09 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV00774, Date: 2023-03-09 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV00774 Hearing Date: March 9, 2023 Dept: G

Defendants Professional Payments, LLC and Jennifer E. Polito’s Demurrer to Plaintiff’s Complaint

Respondent: Plaintiff National Link Incorporated

Defendants Professional Payments, LLC and Jennifer E. Polito’s Motion to Strike Portions of Plaintiff’s Complaint

Respondent: Plaintiff National Link Incorporated

TENTATIVE RULING

Defendants Professional Payments, LLC and Jennifer E. Polito’s Demurrer to Plaintiff’s Complaint is SUSTAINED IN PART, OVERRULED IN PART with twenty (20) days leave to amend.

Defendant Professional Payments, LLC and Jennifer E. Polito’s Motion to Strike Portions of Plaintiff’s Complaint is deemed MOOT.

BACKGROUND

This is a breach of contract action arising from an oral agreement between independent sales organizations (ISO) in the payment processing industry. Non-party National Merchant Center, Inc. (NMC) is an ISO that serves as a middleman between payment processors and a sponsor bank. As an ISO, NMC receives a percentage of all transactions and can also charge its own fees. ISOs like NMC also partner with sub-ISOs and their agents by offering front and back-office services that allow the sub-ISO and their agents to focus solely on sales.

In mid-2018, Plaintiff National Link Incorporated sought to become a sub-ISO for NMC. However, NMC instead proposed Plaintiff become a sub-agent for one of NMC’s sub-ISOs, Defendant Professional Payments, LLC (Professional Payments). In the summer of 2018, Plaintiff’s president met with Professional Payments’ manager, Defendant Jennifer A. Polito (Polito) and came to an alleged oral agreement. Pursuant to the oral agreement, Plaintiff agreed to work as a sub-agent for Professional Payments. While Professional Payments would receive residuals for merchants onboarded by Plaintiff, Professional Payments agreed to pay 80% of the residuals to Plaintiff. After three to four years, Plaintiff had the option to terminate the existing the agreement and assign its business to NMC as a sub-ISO, with Plaintiff receiving 100% of the residuals. In August 2020, Plaintiff alleges Professional Payments stopped making residual share payments to Plaintiff and in October 2020, Plaintiff alleges it learned Professional Payments no longer intended to the honor the agreement.

On July 26, 2022, Plaintiff filed a complaint against Professional Payments and Polito (collectively Defendants) and Does 1-10, alleging the following causes of action: (1) breach of contract, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) conversion, (5) violation of California Business & Professions Code sections 17200 et seq., and (6) injunctive relief.

On February 6, 2023, Defendants filed the present demurrer and motion to strike. Prior to filing on January 27, Defendants’ counsel met and conferred telephonically with Plaintiff’s counsel and was unable to reach a resolution. (Douglas Decl., ¶ 4.)

A hearing on the demurrer and motion to strike is set for March 9, 2023. A case management conference is also set for March 20.

ANALYSIS

Defendants demur to the entire Complaint on the grounds that (1) Plaintiff has failed to establish alter ego liability against Polito, (2) Plaintiff’s six causes of action are insufficiently pled or barred as a matter of law, and (3) Plaintiff’s Complaint is uncertain.

For the following reasons, the court SUSTAINS Defendants’ demurrer on the grounds of uncertainty and as to Plaintiff’s second, third, fourth, fifth, and sixth causes of action with leave to amend. The court OVERRULES Defendants’ demurrer to Plaintiff’s first cause of action.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, at p. 747.)¿

Polito

Defendants argue Plaintiff’s Complaint fails to establish alter ego liability against Polito. The court disagrees.

“Two requirements must be met to invoke the alter ego doctrine: (1) ‘[T]here must be such a unity of interest and ownership between¿the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist’; and (2) ‘there must be an¿inequitable result¿if the acts in question are treated as those of the corporation alone.’” (Turman v. Superior Court of Orange County (2017) 17 Cal.App.5th 969, 980-981, quoting Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) When making alter ego allegations, pleading with particularity is not required as a Plaintiff need only allege “ultimate rather than evidentiary facts.” (Rutherford Holdings, LLC v. Plaza del Rey (2014) 223 Cal.App.4th 221, 236, quoting Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474.)

In this case, Plaintiff alleges Polito is the alter ego of Professional Payments. (Complaint, ¶ 6.) Plaintiff alleges there is a unity of interest, ownership, and operation between Defendants that caused their individually and separateness to cease or not exist in the first place. (Complaint, ¶ 7.) Plaintiff also alleges recognition of their separate existence would promote injustice as Defendants controlled and dominated each other in bad faith. (Complaint, ¶ 7.) In particular, Plaintiff alleges Defendants used each other as a mere shell or naked framework in which to conduct business, comingled funds and assets for their own convenience and to evade obligations, used their funds for non-corporate purposes, purported to work through each other during contract negotiations and performance, failed to maintain minutes and adequate corporate records, failed to maintain arm’s length relationships, used each other to procure services for the other, used the same officers and board of directors, used the same office, and employed the same employees, agents, or attorneys. (Complaint, ¶ 7.)

While Defendants argue these allegations are vague, conclusory, and general, the court disagrees. Instead, the court finds Plaintiff has pled detailed allegations describing how there is a unity of interest and ownership between Polito and Professional Payments. Furthermore, Plaintiff has alleged that injustice would result from recognizing them as separate. Despite Defendants’ argument that Plaintiff needs to allege specific behaviors to support these allegations, the court notes ultimate facts rather than evidentiary facts are sufficient to plead alter ego liability.

Breach of Contract (First Cause of Action)

Defendants contend Plaintiff’s first cause of action for breach of contract is (1) time-barred and (2) barred by the statute of frauds. The court disagrees.

Statute of Limitations

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) The statute of limitations for breach of an oral agreement is two years. (Code Civ. Proc., § 339.) Furthermore, the period in which to commence an action does not begin “until ‘the last element essential to the cause of action’ occurs.” (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040, quoting Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 187.)

In this case, it is unclear when Defendants breached the agreement. According to the Complaint, “[o]n or about August 1, 2020, [Defendants] continued to make excuses that it would send a check for [Plaintiff’s] residual share.” (Complaint, ¶ 29.) Furthermore, “[Professional Payments] breached the Oral Agreement when it became clear at the earliest in October 2020 that [Professional Payments] would no longer honor the Oral Agreement and pay the 80% share.” (Complaint, ¶ 29.) However, the Complaint does not state or allege that the breach occurred on or before July 26, 2020, which is two years before the date the present action was commenced. Ultimately, because grounds for the statute of limitations must “clearly and affirmatively appear on the face of complaint,” the court finds Plaintiff’s cause of action for breach of contract is not barred by the applicable statute of limitations. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155.)

Statute of Frauds

Pursuant Civil Code section 1624, certain enumerated “contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent.” (Civ. Code, § 1624, subd. (a).) One such agreement is “[a]n agreement that by its terms is not to be performed within a year from the making thereof.” (Civ. Code, § 1624, subd. (a)(1).)

In this case, Plaintiff alleges parties made an oral agreement that could be terminated on Plaintiff’s option within three to four years. (Complaint, ¶ 25.) While Defendants argue this oral agreement is invalid pursuant to the statute of frauds, Plaintiff argues the statute of frauds does not apply because Plaintiff alleged the agreement was confirmed by emails. (Complaint, ¶ 27.) A writing satisfies the requirements of the statute of frauds when it mentions “essential” or “meaningful” terms. (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1108.)

Here, Plaintiff merely makes the conclusory allegation that the agreement was “confirmed by emails, . . . communications with NMC, as well as in communications between the parties and suppliers.” (Complaint, ¶ 27.) Absent any allegations regarding the actual content of these communications and whether they mentioned the essential or meaningful terms of the parties’ alleged agreement, the statute of frauds applies.

Plaintiff also argues the Complaint supports exceptions to the statute of frauds, including estoppel and part performance. “A party is estopped to assert the statute of frauds as a defense ‘where [the] party, by words or conduct, represents that he will stand by his oral agreement, and the other party, in reliance upon that representation, changes his position, to his detriment.’” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1040, fn. 10, quoting Associated Creditors’ Agency v. Haley Land Co. (1966) 239 Cal.App.2d 610, 617.) This is because “such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract [Citations.], or in the unjust enrichment that would result if a party who has received the benefits of the other's performance were allowed to rely upon the statute.” (Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623-624.)

Furthermore, “where assertion of the statute of frauds would cause unconscionable injury, part performance allows specific enforcement of a contract that lacks the requisite writing.” (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1108.) Part performance occurs when the actions refer to the contract or are in clear relation to its terms as “[s]uch conduct satisfies the evidentiary function of the statute of frauds by confirming that a bargain was in fact reached.” (Id., at p. 1109.) “The payment of money is not sufficient part performance to take an oral agreement out of the statute of frauds [citation], for the party paying money under an invalid contract . . . has an adequate remedy at law.” (Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 555, quoting Anderson v. Stansbury (1952) 38 Cal.2d 707, 715-716.)

In this case, Plaintiff pleads sufficient allegations to establish both exceptions to the statute of frauds defense. In reliance on the alleged oral agreement, Plaintiff sold and serviced merchant accounts for Defendants, building up a portfolio worth $9,000 a month. (Complaint, ¶ 28.) As evidence of Plaintiff’s performance under the agreement, the Complaint alleges Defendants made monthly payments of Plaintiff’s share of the residuals up until July 2022. (Complaint, ¶ 26-28, 56.) Thus, Plaintiff has established Plaintiff’s partial performance under the oral agreement in the form of selling and servicing merchant accounts for Defendants. Additionally, because Defendant received the benefit of Plaintiff’s services and income from the residuals, Plaintiff has established enforcing the statute of frauds to deny Plaintiff’s compensation would be to Plaintiff’s detriment. As a result, the statute of frauds does not bar the enforcement of the oral agreement.

Accordingly, Defendants’ demurrer to Plaintiff’s first cause of action is OVERRULED.

Intentional and Negligent Misrepresentation (Second and Third Causes of Action)

Defendants maintain Plaintiff’s second cause of action for intentional misrepresentation and third cause of action for negligent misrepresentation (1) are time-barred and (2) fail to plead sufficient facts to state a claim. The court disagrees they are time-barred but agrees they fail to plead sufficient facts.

Statute of Limitations

The statute of limitations for fraud is three years and does not accrue “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Code Civ. Proc., § 338, subd. (d).) For negligent misrepresentation claims, the statute of limitations is two years. (Code Civ. Proc., § 339, subd. (1).)

In this case, Plaintiff alleges Plaintiff first discovered Defendants’ intentional or negligent misrepresentations “when it then became clear at the earliest in October 2020 that [Professional Payments] would no longer honor the Oral Agreement” and make payments. (Complaint, ¶ 29.) While Defendants claim the representations were made in the summer of 2018 or August 2018 when the alleged oral agreement was made, Plaintiff did not allegedly discover those representations were intentional or negligent misrepresentations until October 2020. Thus, the applicable statutes of limitations do not bar Plaintiff’s second and third causes of action.

Sufficiency of the Pleadings

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven¿essential elements: (1) the¿defendant¿represented¿to the¿plaintiff¿that an¿important¿fact¿was¿true; (2) that¿representation¿was¿false; (3) the¿defendant¿knew¿that the¿representation¿was¿false¿when the¿defendant¿made¿it, or the¿defendant¿made¿the¿representation¿recklessly¿and without¿regard¿for¿its¿truth; (4) the¿defendant¿intended¿that the¿plaintiff¿rely¿on the¿representation; (5) the plaintiff¿reasonably relied on the representation;¿(6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498.)

“The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’” (National Union Fire Ins. Co. of Pittsburg, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 (National Union), quoting Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “While there is some conflict in the case law discussing the precise degree of particularity required in the pleading of a claim for negligent misrepresentation, there is a consensus that the causal elements, particularly the allegations of reliance, must be specifically pleaded.” (National Union, supra, 171 Cal.App.4th at p. 50.)

In this case, Defendants maintain Plaintiff’s Complaint fails to establish either type of misrepresentation because it does not allege the misrepresentations made were intended to defraud or induce reliance.

Plaintiff alleges Defendants made two misrepresentations. At the inception of the oral agreement, Plaintiff alleges Defendants promised to transfer 80% of their residual share income to Plaintiff for business generated by Plaintiff. (Complaint, ¶ 39.) Then, from August 2018 to June 2022, Polito orally represented that Plaintiff need not “be concerned and that [Defendants] would honor the contract.” (Complaint, ¶ 39.) Plaintiff alleges these representations “were knowingly false when made” and that Defendants “had already decided that it/she/they were not going to honor the Oral Agreement and would retain the [Plaintiff’s] portfolio and all income and assets derived therefrom.” (Complaint, ¶ 40.)

First, the court finds these allegations vague and not plead with specificity as required for intentional misrepresentation. In particular, Plaintiff fails to allege the actual dates or what was actually said when each of these alleged misrepresentations was made. Second, the court notes these allegations are in conflict with other allegations in the Complaint. While Plaintiff alleges representations from August 2018 to July 2022 were false because Defendants decided they would not honor the oral agreement and would retain all income derived from Plaintiff’s portfolio, Plaintiff also alleges Defendants made the agreed upon payments monthly and that Plaintiff was only wrongfully deprived of funds as of July 2022. (Complaint, ¶ 27, 56.) Finally, Plaintiff fails to allege Defendants intended to induce Plaintiff’s reliance, especially given most of these representations appear to have been made after the parties already entered into the alleged oral agreement. Thus, Plaintiff has not alleged sufficient facts to establish intentional or negligent misrepresentation.

Accordingly, Defendants’ demurrer to Plaintiff’s second and third cause of action is SUSTAINED with leave to amend.

Conversion (Fourth Cause of Action)

Defendants argue Plaintiff’s fourth cause of action for conversion is (1) time-barred and (2) is barred by the economic loss doctrine. The court disagrees that it is time-barred, but agrees it is barred by the economic loss doctrine.

Statute of Limitations

The statute of limitations for conversion is three years. (Code Civ. Proc., § 338, subd. (c).) “As a general rule, the statute of limitations for conversion is triggered by the act of wrongfully taking property.” (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1433.) In arguing this cause of action is barred by the statute of limitations, Defendants claim this cause of action should not be treated as an independent cause of action from Plaintiff’s breach of contract claim. However, even if the relevant statute of limitations of breach of oral contract was controlling, the court has already noted it does not bar the present action. The alleged conversion or breach of contract occurred in October 2020 when “it became clear . . . that [Professional Payments] would no longer honor the Oral Agreement and pay the 80% share.” (Complaint, ¶ 29.) Thus, the applicable statute of limitations does not bar Plaintiff’s action for conversion.

Economic Loss Doctrine

The economic loss doctrine establishes that “[i]n general, there is no recovery in tort for negligently inflicted ‘purely economic losses,’ meaning financial harm unaccompanied by physical or property damage.” (Sheen v. Wells Fargo Bank. N.A. (2022) 12 Cal.5th 905, 922.) It “functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties.” (Id., at p. 922.) “Tort damages have been permitted in contract cases where . . . the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551-552.) “Conversion is an intentional tort.” (Multani v. Knight (2018) 23 Cal.App.5th 837, 853.) “Because the act [of conversion] must be knowingly done, ‘neither negligence, active or passive, nor a breach of contract, even though it results in injury to, or loss of, specific property, constitutes a conversion.’” (Taylor v. Forte Hotels International (1991) 235 Cal.App.3d 1119, 1124.)

In this case, Plaintiff alleges Defendants willfully interfered with its right to possess residual funds by transferring funds received by Professional Payments to Polito instead of Plaintiff. (Complaint, ¶ 56.) However, Plaintiff’s allegation is not based on Defendants’ interference with the right to possess residual funds but rather it is based on Defendants’ violation of its obligations to pay those funds under the oral agreement. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 285 [defendants’ failure to satisfy obligations to repay debt is not conversion].) Thus, Plaintiff’s claim for conversion, as presently pled, is barred by the economic loss doctrine.

Accordingly, Defendants’ demurrer to Plaintiff’s fourth cause of action is SUSTAINED with leave to amend.

Violation of Unfair Competition Law (Fifth Cause of Action)

Defendants contend Plaintiff’s fifth cause of action for violation of Unfair Competition Law (UCL) fails to plead sufficient facts to state a claim. The court agrees.

To state a cause of action for unfair business practices, a plaintiff must establish defendant engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” (Bus. & Prof. Code, § 17200.) This section establishes three types of unfair competition, prohibiting “practices that are either ‘unfair,’ or ‘unlawful,’ or ‘fraudulent.’” (Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1496.) Thus, “An act or practice may be actionable as “unfair” under the unfair competition law even if it is not ‘unlawful.’” (Chavez v. Whirlpool Corp. (2001) 93 Cal.App.4th 363, 374.)

In this case, the alleged violations of the UCL are Defendants’ failure to pay Plaintiff’s share of the residual share and retention of that share. (Complaint, ¶ 63-64.) However, because this allegation is based on the success of Plaintiff’s conversion and fraud claims, it fails as well. (AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 950.)

Accordingly, Defendants’ demurrer to Plaintiff’s fifth cause of action is SUSTAINED with leave to amend.

Injunctive Relief (Sixth Cause of Action)

Defendants maintain Plaintiff’s sixth cause of action for injunctive relief fails to plead sufficient facts to state a claim. The court agrees.

A party seeking injunctive relief must show the absence of an adequate remedy at law. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564 (Anderson-Cottonwood).) “[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.” (Id., at p. 1565.)

In this case, Plaintiff alleges injunctive relief is appropriate because Defendants are continuing to harm Plaintiff by interfering with Plaintiff’s residual payments, client goodwill, and business opportunities in violation of their oral agreement. (Complaint, ¶ 70-71.) However, Plaintiff fails to demonstrate how an award of damages to Plaintiff for the alleged conduct will be inadequate compensation.

Accordingly, Defendants’ demurrer to Plaintiff’s sixth cause of action is SUSTAINED with leave to amend.

Uncertainty

Defendants argue Plaintiff’s Complaint is uncertain with respect to the nature of the damages alleged. The court agrees.

A demurrer for uncertainty is appropriate where the pleading is so poorly drafted that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f); Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty is a disfavored ground for sustaining a demurrer. (Ibid.)

In this case, Defendants argue Plaintiff’s damages in paragraph 31 are uncertain. In relevant part, the damages allegations are as follows:

“As a result of the Defendants’ misconduct, Plaintiff has suffered loss of its residuals of $173,046, [Professional Payments’] refusal to respond to unwarranted adjustments to its prior paid residual share of $10,500 and pre-judgment interest of $15,152 as of June to a total amount due of $198,699 as of the date of filing this complaint.” (Complaint, ¶ 31.)

Elsewhere, Plaintiff alleges Defendant wrongfully converted no less than $174,046 (Complaint, ¶ 36) or $175,000 of Plaintiff’s residual income (Complaint, ¶ 52-60). Plaintiff also alleges that the portfolio was worth $9,000 a month instead of $10,500 (Complaint, ¶ 26, 28). Additionally, Plaintiff claims the total value of the residuals is $270,000 and $405,000 (Complaint, ¶ 26). Given Plaintiff’s haphazard and unclear method of pleading damages throughout the Complaint, the court finds that damages have been pled with uncertainty.

Accordingly, Defendants’ demurrer to Plaintiff’s Complaint on the grounds of uncertainty is SUSTAINED with leave to amend.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’s Complaint is SUSTAINED with twenty (20) days leave to amend on the grounds of uncertainty as to damages, and as to the second, third, fourth, fifth, and sixth causes of action.

The demurrer is OVERRULED as to the first cause of action.

Based on the above analysis, Defendants’ motion to strike portions of Plaintiff’s Complaint is MOOT.