Judge: Virginia Keeny, Case: 22VECV01084, Date: 2022-09-29 Tentative Ruling
Case Number: 22VECV01084 Hearing Date: September 29, 2022 Dept: W
SJARESKA MARTINA KARNI v. DIANA
LUA, et al.
demurrer to complaint of plaintiff
Date of Hearing: September 29, 2022 Trial Date: None Set.
Department: W Case
No.: 22VECV01084
Moving Party: Defendants,
Katelyn White and The Biz Shop, Inc.
Responding Party: Plaintiff, Sjareska Martina Karni
BACKGROUND
On August 1, 2022, Sjareska Martina
Karni (“Plaintiff”) commenced the present action by filing a Complaint against
Diana Lua, Women to Women Legacy, Inc., James Lua, Katelyn White, The Biz Shop,
Inc., and Does 1 through 75 (collectively, “Defendants”). Plaintiff’s Complaint alleges the following
causes of action: (1) Breach of Fiduciary Duty; (2) Breach of Oral Contract;
(3) Fraud (Deceit); (4) Fraud (Concealment); (5) Fraud (False Promise); (6)
Constructive Fraud; (7) Fraud in the Issuance of Securities; (8) Conversion;
(9) Money Had and Received; (10) Recovery of Voidable Transfers; (11) Unfair
Business Practices; (12) Civil Conspiracy; (13) Declaratory Relief; and (14)
Accounting.
Plaintiff’s Complaint arises out of the
following facts and circumstances. Plaintiff
and Defendant Diana Lua agreed to open a coffee and gelato shop, operating
under the corporate name “Women to Women Legacy, Inc.” (hereinafter, Defendant Women to Women Legacy”),
at the real property located at 22776 Ventura Boulevard, Suite D in Woodland
Hills, California (“Subject Property”).
Plaintiff was named as Women to Women Legacy’s CFO and Director, and
Defendant Lua was named as Women to Women Legacy’s CEO and Secretary. On December 8, 2021, the proposed coffee and
gelato shop, which the parties named “Tang & Java”, opened for
business. Plaintiff alleges,
subsequently, Defendant Diana Lua conspired with the other named Defendants in
this action to force Plaintiff out of the business. Specifically, Plaintiff alleges the following
acts took place in order to further the conspiracy: (i.) Defendant Diana Lua
changed the locks of Tang & Java, (ii.) Defendant Diana Lua removed
Plaintiff’s name from Defendant Women to Women Legacy’s bank account, (iii.)
Defendant Diana Lua filed a new Statement of Information of the California
Secretary of State which named Defendant Diana Lua as the sole Officer and
Director, (iv.) Defendant Katelyn White signed the new Statement of Decision,
(v.) Defendant Diana Lua locked Plaintiff out of all email accounts of
Defendant Women to Women Legacy, prevented Plaintiff’s access to any business
information, and removed Plaintiff’s name from the lease of the Subject
Property. Plaintiff brings the present
action in order to enjoin Defendants from operating Tang & Java contrary to
the parties’ agreement.
On August 22, 2022, the Court granted
Plaintiff’s Ex Parte Application for Temporary Restraining Order, and ordered
Defendants Diana Lua and Women to Women Legacy to provide Plaintiff with access
to all books and records of Women to Women Legacy and Tang & Java, and
refrain from making any decisions regarding the ownership or financial affairs
of Tang & Java, except routine day-to-day operations, without Court
approval.
On September 1, 2022, Defendants
Katelyn White and The Biz Shop, Inc. filed the present Demurrer to Plaintiff’s
Complaint.
On September 9, 2022, Defendant Women
to Women Legacy filed a Cross-Complaint against Plaintiff, Erez Karni, Karni
Development, Inc., and Roes 51 through 100.
The Cross-Complaint alleges the following causes of action: (1) Breach
of Oral Contract (against Plaintiff); (2) Breach of Oral Contract (against Erez Karni and Karni
Development, Inc.); and (3) Conversion (against Plaintiff).
On September 12, 2022, Defendant Diana
Lua filed a Cross-Complaint against Plaintiff, Erez Karni, Karni Development,
Inc., and Roes 1 through 50. The
Cross-Complaint alleges the following causes of action: (1) Breach of Oral Contract
(against Plaintiff); (2) Breach of Oral
Contract (against Erez Karni and Karni Development, Inc.); (3) Fraud
(against all Cross-Defendants); and (4) Declaratory Relief (against Plaintiff).
Additionally, on September 12, 2022,
the Court extended the Temporary Restraining Order previously issued on August
22, 2022 and expanded the Temporary Restraining Order by ordering the
following: (1) Ordering Defendants to restore Plaintiff’s access to all emails,
databases, computer programs and records, including the Point of Sale program
and video camera recordings; and (2) Ordering Defendants to cease all
representation that Defendant Diana Lua is the sole owner of the business,
Plaintiff is no longer affiliated with the business, or that there are any other
owners other than Plaintiff and Defendant Diana Lua.
On September 15, 2022, Plaintiff filed
an Opposition to Defendants Katelyn White and The Biz Shop, Inc.’s Demurrer.
On September 21, 2022, Defendants
Katelyn White and The Biz Shop, Inc. filed a Reply to Plaintiff’s Opposition.
[Tentative] Ruling
Defendants Katelyn White and The Biz
Shop, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED, with leave to amend.
LEGAL
STANDARD
The moving party against whom a
complaint or cross-complaint is directed may object by demurrer to the pleading
on one of several grounds outlined by section 430.10. (Code Civ. Proc., § 430.10, subd. (a)-(h).) These grounds include lack of jurisdiction, lack
of legal capacity to sue, uncertain pleadings, or pleadings that do not state
facts sufficient to constitute a cause of action, among others. (Ibid.)
A demurrer¿advanced on the ground
the pleading does not state facts sufficient to constitute a cause of action
“tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America,
N.A.¿(2017) 9 Cal.App.5th 719, 725; Code Civ. Proc., § 430.10, subd.
(e).) The Court looks to whether “the
complaint alleges facts sufficient to state a cause of action or discloses
a complete defense.” (Id.) The Court does not “read passages from a
complaint in isolation; in reviewing a ruling on a demurrer, we read
the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780, 804.)
The Court “assume[s] the truth of the properly pleaded factual
allegations, facts that reasonably can be inferred from those expressly pleaded
and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p.
240.) “The court does not, however,
assume the truth of contentions, deductions or conclusions of law.
[Citation.]” (Durell v. Sharp
Healthcare (2010) 183 Cal.App.4th 1350, 1358.)
Code of Civil Procedure section
430.41 requires that “[b]efore 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.”
(Code Civ. Proc., § 430.41, subd. (a).)
The parties are to meet and confer at least five days before the date
the responsive pleading is due. (Code
Civ. Proc., § 430.41, subd. (a)(2).)
Thereafter, the demurring party shall file and serve a declaration
detailing their meet and confer efforts.
(Code Civ. Proc., § 430.41, subd. (a)(3).)
ANALYSIS
Defendants Katelyn
White and The Biz Shop, Inc. (hereinafter, “Defendants” or “Moving Defendants”)
demur to Plaintiff’s operative Complaint on the ground Plaintiff has failed to
state sufficient facts to support the Twelfth Cause of Action for Civil
Conspiracy.
Meet
and Confer Requirement
Preliminarily, following a review of
the supporting Declaration of Michael M. Kowsari, Esq., the Court finds
Defendants have properly met and conferred with Plaintiff prior to filing the
instant Demurrer, in compliance with Code of Civil Procedure section 430.41,
subdivision (a). (Code Civ. Proc., § 430.41, subd. (a).)
Twelfth
Cause of Action for Civil Conspiracy
Defendants
demur to Plaintiff’s Twelfth Cause of Action for Civil Conspiracy on the ground
Plaintiff has failed to allege facts sufficient to constitute a cause of action. Specifically, defendants argue plaintiff has
failed to allege facts sufficient to establish the first and second elements of
a cause of action for Civil Conspiracy.
“The
elements of a civil conspiracy are (1) the formation of a group of two or more
persons who agreed to a common plan or design to commit a tortious act; (2) a
wrongful act committed pursuant to the agreement; and (3) resulting
damages.” (City of Industry v. City
of Filmore (2011) 198 Cal.App.4th 191, 212.) “A party seeking to establish a civil
conspiracy ‘must show that each member of the conspiracy acted in concert and
came to a mutual understanding to accomplish a common and unlawful plan, and
that one or more of them committed an overt act to further it. [Citation.] It
is not enough that the [conspirators] knew of an intended wrongful act, they
must agree—expressly or tacitly—to achieve it.’ [Citation.] It must be
recognized, however, that because of the very nature of a conspiracy, ‘its
existence must often be inferentially and circumstantially derived from the
character of the acts done, the relations of the parties and other facts and
circumstances suggestive of concerted action.’ [Citation]” (AREI II Cases (2013) 216 Cal.App.4th
1004, 1022.) “While a complaint must contain
more than a bare allegation the defendants conspired, a complaint is sufficient
if it apprises the defendant of the ‘character and type of facts and
circumstances upon which she was relying to establish the conspiracy.’
[Citation.]” (Ibid.)
Reviewing the
operative Complaint, the Court finds Plaintiff has failed to allege facts
sufficient to constitute a cause of action for Civil Conspiracy. Primarily, the Court concludes Plaintiff has
failed to allege facts establishing the first element of a cause of action for
Civil Conspiracy, that is, that Moving Defendants formed a group with the
remaining Defendants and the group, collectively, agreed to force Plaintiff out
of the coffee and gelato business known as Tang & Java, and incorporated as
Defendant Women to Women Legacy. The
Court’s conclusion is premised upon the fact that Plaintiff’s operative
Complaint only includes the bare, conclusory allegation that “sometime between
April 2022 and the present, DEFENDANTS, and each of them, did knowingly and willfully
conspire and agree among themselves to . . . misrepresent to PLAINTIFF that
[Defendant Diana] LUA would act as a 50/50 partner in the business and had the
intent to treat the corporation and business as if she and PLAINTIFF were equal
‘partners’ when in fact, DEFENDANTS intended to deprive PLAINTIFF of her rights
and benefits to which she agreed when forming [Defendant Women to Women Legacy]
and LUA.” (Compl., ¶ 165.) Plaintiff’s Complaint contains no specific
allegations describing the alleged purported agreement made between Moving
Defendants and the remaining Defendants.
Further, the Court recognizes that “[w]here fraud is alleged to be the
object of the conspiracy, the claim must be pled with particularity.” (Prakashpalan
v. Engstrom, Lipscomb & Lack (2014) 223
Cal.App.4th 1105, 1136.) While
Plaintiff’s Complaint alleges Defendants, collectively, conspired to make
certain “misrepresent[ations]” to Plaintiff for the purposes of “depriving
PLAINTIFF of her rights” in the subject business, Plaintiff has failed to
allege such agreement to perpetrate fraud with the requisite specificity. As stated above, Plaintiff’s Complaint is
devoid of any concrete facts establishing Moving Defendants’ agreement to commit
the alleged fraudulent conduct against Plaintiff. Accordingly, the Court finds Plaintiff’s
Twelfth Cause of Action for Civil Conspiracy insufficiently plead.
Accordingly, based upon the foregoing,
Defendants’ Demurrer to Plaintiff’s Twelfth Cause of Action for Civil
Conspiracy is SUSTAINED, with leave to amend.
CONCLUSION
Defendants Katelyn White and The Biz
Shop, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED, with leave to amend.