Griffin vs Ken Grody Ford

The TAC alleges that Defendant owed a duty to protect Plaintiff’s Vehicle and breached that duty by leaving the care in an unsecured area with the keys inside the vehicle. (TAC, ¶¶39-41.)

The TAC properly states a claim.

Defendant also argues that this was added without leave of court. That argument is addressed in the Motion to strike.

3. Fourth Cause of Action for Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086, citation omitted. “There are two kinds of fiduciary duties—those imposed by law and those undertaken by agreement.” (GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 416, disapproved on other grounds by Reeves v. Hanlon (2004) 33 Cal.4th 1140, citations omitted.)

Fiduciary duties are imposed by law in certain technical, legal relationships such as those between partners or joint venturers, husbands and wives, guardians and wards, trustees and beneficiaries, principals and agents, and attorneys and clients. (Ibid.) “A fiduciary duty is undertaken by agreement when one person enters into a confidential relationship with another,” i.e., “where a confidence is reposed by one person in the integrity of another” and the other person “voluntarily accepts or assumes to accept the confidence.” (Id. at 417, citations omitted.)

The essential elements of a confidential relation giving rise to a fiduciary duty are as follows: “1) The vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 272, citations omitted.) “The vulnerability that is the necessary predicate of a confidential relation, and which the law treats as ‘absolutely essential,’ usually arises from advanced age, youth, lack of education, weakness of mind, grief, sickness, or some other incapacity. (Id. at 273.)

The Court previously granted the Motion as to this claim finding in relevant part that:

Plaintiff has not alleged any facts to showing the existence of a fiduciary duty as a matter of law or that the parties entered into a confidential relationship giving rise to a fiduciary duty.

(ROA 195.)

There are no new facts alleged in this regard. Thus, the Motion is granted as to the fourth cause of action for breach of fiduciary duty. Plaintiff chose not to oppose this Motion and has not shown how he can amend this claim, when he has been unable to do so previously. Thus, leave to amend is now denied.

4. Fifth Cause of Action for Intentional Misrepresentation

“The elements of intentional misrepresentation ‘are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.’’’ Aton, 93 Cal.App.5th at 1245, citation omitted.

The Court held that Plaintiff has not alleged how he relied on the misrepresentation/false promise. (ROA 195.) The SAC pled that Defendant falsely represented to Plaintiff that they would make him whole after his car was stolen but lied about it. (SAC ¶¶53-58.)

In the TAC, Plaintiff attempts to allege a false promise, not intentional misrepresentation because it pertains to a future act. “The law is well established that actionable misrepresentations must pertain to past or existing material facts. Statements or predictions regarding future events are deemed to be mere opinions which are not actionable.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469, internal citation omitted.)

Rather, at best, this would be a false promise. “ ‘ “Promissory fraud” is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.’ ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973−974, internal citations omitted.)

“[T]here are two causation elements in a fraud cause of action. First, the plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation must have caused him to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062, internal citations omitted.)

Plaintiff now alleges that in reliance on the representation that Defendant would replace his stolen vehicle, he “delayed securing a replacement vehicle for approximately three (3) months” and lost income as a result of not having a car. (TAC, ¶¶69, 70.)

Thus, at the pleadings stage the Court finds this sufficient to show reliance.

5. Sixth Cause of Action for Conversion

The elements of the tort of conversation are (1) the plaintiff’s ownership or right to possession of personal property; (2) the

defendant’s disposition of the property in a matter that is inconsistent with the plaintiff’s property rights; and (3) resulting damages. (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181, citation omitted.) “[C]onversion is a strict liability tort. It does not require bad faith, knowledge, or even negligence; it requires only that the defendant have intentionally done the act depriving the plaintiff of his or her rightful possession.” (Voris v. Lampert (2019) 7 Cal.5th 1141, 1158, citation omitted.)

The Court previously denied Defendant’s to this cause of action directed to the Second Amended Complaint.

The Court again finds that sufficient facts are alleged.

B. Motion to Strike Portions of the TAC

Defendant’s Motion to strike portions of Plaintiff’s TAC is granted in part as set forth below, without leave to amend.

Defendant is now ordered to answer the TAC within 20 days.

Claims Added Without Leave of Court Defendant moves to strike the newly added claims that were brought without leave of court, specifically:

• Second cause of action for negligence; • Third cause of action breach of bailment; • Seventh cause of action for unfair business practices under Business and Professions Code Section 17200;

The Court grants this request as to the third and seventh causes of action only.

The negligence claim was added in the Second Amended Complaint and Plaintiff chose not to address the claim at all.

However, the third and seventh claims were added for the first time to the TAC without leave of court.

The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.)

CCP § 436 grants the Court discretion to strike portions of a complaint at any time that are not in conformity with the laws of this state, a court rule, or an order of the court.

Thus, the Court strikes the third and seventh causes of action without prejudice to proper motion by Plaintiff.

Punitive Damages Civil Code Section 3294, subdivision (a) provides for punitive damages: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Section 3294, subdivision (c) defines malice, oppression and fraud as follows: “(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

Civil Code Section 3294, subdivision (b) states: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Here, the TAC alleges in relevant part as follows:

Contrary to standard protocol and prior assurances from the service department to secure the Vehicle in a locked service lot, an undisclosed service agent at Ken Grody Ford parked the

Vehicle on an unsecured street. The keys were left inside, and the doors were unlocked, despite the imminent closure of the Service Department at 3:00PM and the absence of personnel to monitor the area. This conduct was highly unusual and contrary to established security practices, especially given that a secure lot was available for such purposes. The deliberate decision to leave the Vehicle in such a vulnerable state suggests a coordinated effort to facilitate its theft, rather than an oversight.

(TAC, ¶62, see also ¶¶78-79.)

Conspiring with the unknown perpetrator to steal Plaintiff’s car warrants punitive damages, if true; and the Court must accept these allegations as true. Similarly, in the fraud claim, punitive damages are properly alleged.

Plaintiff also alleges ratification sufficient to warrant punitive damages against the entity Defendant. (See TAC, ¶108.)

Thus, the Motion is denied as to punitive damage sought in the two intentional tort claims.

To the extent punitive damages are sought for the first and second causes of action for breach of oral contract and negligence, the Motion is granted and punitive damages are stricken.

Attorney’s Fees Code of Civil Procedure section 1033.5, subdivision (a) provides in part: “The following items are allowable as costs under Section 1032: . . . (10) Attorney’s fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.”

Plaintiffs have not alleged any contract, statute or law which allows for the recovery of attorney’s fees. The Court previously granted the Motion directed to the SAC to strike attorney’s fees and Plaintiff failed to show entitlement. Leave is now denied.

What remains in the TAC: In sum, the first claim for breach of contract, the second claim for negligence, the fifth claim for false promise, and the sixth claim for conversion remain in the TAC. Punitive damages are stricken except for the fifth and sixth causes of action. The requests for attorney’s fees are stricken. Further leave to amend is denied.

The Court will set a trial date at the OSC and CMC hearing.

Case Management Conference OSC re: Monetary Sanctions

5 Holland vs. South Orange County Community College District

2022-01265727 Motion to Compel Further Responses to Special Interrogatories Motion to Compel Production

Continued to August 4, 2026 at 1:30 p.m.

6 Lee vs. Rainone Enterprises, LLC

2025-01469318 Motion for Summary Judgment and/or Adjudication

Off Calendar 7 Lipton vs. Ooblix, Inc.

2025-01458340 Motion to Be Relieved as Counsel of Record

The unopposed motion by Callahan & Blaine, PC (“Counsel”), attorney of record for Defendant Ooblix, Inc. (“Ooblix”) for an order permitting counsel to be relieved as attorney of record for Ooblix in this action is GRANTED.

Counsel complied with CRC Rule 3.1362. Upon the signing of the revised order, Counsel shall serve the signed revised order on Ooblix and all parties who have appeared. The revised order granting relief shall be effective when proof of service of the signed revised order (including the future OSC for representation date of September 14, 2026 at 9:00 am) on Ooblix and all parties is filed with the Court.