Bavarian vs. Aston Marton Lagonda of North America, Inc.

Los Feliz (2002) 102 Cal.App.4th 474, 478.

Plaintiff has established a sufficient probability of prevailing on its Seventh Cause of Action for Violations of Bus. & Prof. Code §17200. Plaintiff has established that Defendants created a parallel business entity to Plaintiff, have interfered with Plaintiff’s Google Workspace management, have diverted receipts owed to Plaintiff from Customers to Defendant’s own accounts, and that Defendants removed property from Plaintiff’s premises and are withholding that property. (See ROA 37 [“Gola decl.”] at ¶¶ 10-12 [formation of parallel LLC]; 13-14 [Google Workspace changes]; 17-20 [diversion of customer receipts; 21-26 [taking possession of company property].) Plaintiff has established the irreparable harm that would result if no injunction were in place. (See Gola Decl. ¶¶ 35-40.)

Defendant has not made an intelligible factual showing that establishes either (1) a lack of probable validity of Plaintiff’s claims; or (2) that Defendant would suffer greater interim harm by the imposition of the injunction that Plaintiff would if no injunction were ordered.

Within 5 days Plaintiff shall lodge a proposed preliminary injunction that maintains the same provisions as the temporary restraining order entered on July 1, 2026, except the amount of the required undertaking shall be changed from $10,000 to $50,000.

Plaintiff shall post the new undertaking and serve a copy of the signed Order granting the preliminary injunction promptly after the Court signs the order.

Plaintiff shall provide notice.

2 Bavarian vs. Aston Motion for Judgment on the Pleadings Marton Lagonda of North America, Defendant Aston Marton Lagonda of North America, Inc.’s motion Inc. for judgment on the pleadings is DENIED. (Code Civ. Proc., § 438 [authorizing motion]; Hightower v. Farmers Ins. Exchange 2022-01241715 (1995) 38 Cal.App.4th 853, 858 [“Because a motion for judgment on the pleadings is the functional equivalent of a general demurrer, the same rules apply”].)

Moving party’s request for judicial notice is DENIED. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 607-608 [materials prepared by private parties and merely on file with state agencies are not ordinarily subject to judicial notice pursuant to Evid. Code,

§ 452, subd. (c); Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning ... The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable;” see also Hightower v. Farmers Ins. Exchange, supra at 858 [demurrer rules applicable to motion for judgment on the pleadings].)

Service is defective. Moving party served the moving papers to the unrepresented plaintiff by electronic service only. However, self-represented parties “are to be served by non-electronic methods unless they affirmatively consent to electronic service.” (Cal. Rules of Court, Rule 2.251, subd. (c)(3)(B); see also Rule 2.253, subds. (b)(2) [self-represented parties exempt from mandatory e-filing and e-service requirements], (b)(3) [“In civil cases involving both represented and self-represented parties or other persons, represented parties or other persons may be required to file and serve documents electronically; however, in these cases, each self-represented party ... is to file, serve, and be served with documents by non-electronic means unless the self-represented party or other person affirmatively agrees otherwise”].)

There is nothing in the court’s records indicating plaintiff’s affirmative consent to electronic service.

The motion is also denied on the merits.

The 1st cause of action for fraud states sufficient facts. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements], 645 [specific pleading required]; Complaint, ¶¶ 2, 8, 10-12, 17 [misrepresentations, speaker, authority], ¶ 18 [falsity, scienter], ¶¶ 19, 20 [reliance], ¶ 22 [proximately caused damages].)

Moving party has not shown that either the 1 st cause of action for fraud or 2nd cause of action for negligence is barred by the economic loss rule. (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 20 [“The rule itself is deceptively easy to state: In general, there is no recovery in tort for negligently inflicted ‘purely economic losses,’ meaning financial harm unaccompanied by physical or property damage;” citation omitted.) “Courts generally permit tort suits if the defendant allegedly violated a duty rooted in tort principles that is independent of the parties’ contractual rights and obligations and exposed the plaintiff to a risk of harm beyond the parties’ reasonable contemplation when they entered into the contract.” (Id. at 23.) Here, the Complaint alleges violation of an

independent tort duty (fraud), as well as harm outside of the contract (over 2,286 miles on the vehicle, not necessary for the clutch repair). (Complaint, ¶¶ 9, 11, 18, 19, 21.)

Whether moving party is a separate entity from the dealership, and/or whether the alleged actions / misrepresentations were performed by the dealership and not moving party, is not alleged; to the extent moving party relies on its request for judicial notice in support of such arguments, the request is denied as stated above. (Code Civ. Proc., § 438, subd. (d) [“The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice”]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [a demurrer (or other pleading challenge) lies only for defects appearing on the face of the pleading, or from matters outside the pleading properly subject to judicial notice].)

As to punitive damages, since the motion is denied as to the fraud claim, this cause of action is alone sufficient to support punitive damages. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610 [“Civil Code section 3294 ... treats ‘oppression, fraud, or malice’ as separate bases for imposition of exemplary damages ... [a] fraud cause seeking punitive damages need not include an allegation that the fraud was motivated by the malicious desire to inflict injury ... [t]he pleading of fraud is sufficient”].)

Moreover, a claim for punitive damages is a remedy, not a separate cause of action (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1164), and thus is not a proper subject for the instant motion under Code Civ. Proc., § 438, subd. (c)(1)(B)(ii) [failure to state “facts sufficient to constitute a cause of action against that defendant”].) Finally, allegedly improper damages allegations should have been addressed via a motion to strike, not a motion for judgment on the pleadings. (Kong v.

City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“a demurrer cannot rightfully be sustained ... to a particular type of damage or remedy”]; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“demurrer does not lie to a portion of a cause of action”]; see also Hightower v. Farmers Ins. Exchange, supra at 858 [demurrer rules applicable to motion for judgment on the pleadings].)

Clerk shall give notice.