Ilya Rosenberg v. Sensel, Inc. et al.

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 10 Honorable Jeffrey B. El-Hajj Blanca Than, Courtroom Clerk 191 North First Street, San Jose, CA 95113

DATE: August 25, 2026 TIME: 9:00 A.M. / 9:01 A.M. To contest the ruling, call (408) 808-6856 before 4:00 P.M. Make sure to let the other side know before 4:00 P.M. that you plan to contest the ruling. (Cal. Rules of Court, rule 3.1308(a)(1); Local Rule 8.D.)

**Please specify the issue to be contested when calling the Court and counsel**

Line 5 24CV445456 North Mill Equipment Plaintiff’s motion to compel defendant Ryan Peacock’s initial Finance, LLC et al. v. responses to form interrogatories, requests for production, and Ryan Peacock et al. requests for admission. Notice is proper, and the motion is unopposed. The motion includes a declaration from counsel (with exhibits attached), but does not include a memorandum of points and authorities. The motion is DENIED WITHOUT PREJUDICE to the filing of a new motion with supporting argument.

The court will prepare the order. Line 6 25CV457782 Ilya Rosenberg v. Sensel, Click LINE 6 or scroll down for ruling. Inc. et al. Line 7 25CV460436 Fang Xia v. Park Plaintiff’s motions to compel further responses to requests for Townsend Homeowners production, set two, and special interrogatories, set two. Notice Association is proper, and the motions are opposed by defendant. The court has ordered the parties to submit all discovery disputes to a discovery facilitator. To prepare for the discovery facilitator, the parties are ordered to meet and confer in person, by telephone, or by videoconference before meeting with the facilitator, to attempt to informally resolve all pending discovery issues.

To provide time for that process to occur, all pending discovery motions are CONTINUED to January 26, 2027, at 9:00 a.m. in Department 10. That includes: the two motions currently scheduled for August 25, 2026; defendant’s request for a protective order currently scheduled for October 13, 2026; and plaintiff’s discovery motion currently scheduled for November 24, 2026. The parties must file a joint statement of no more than six pages, no later than January 5, 2027. The joint statement must identify any remaining items in dispute.

The court will prepare the order.

Calendar Line 6 Case Name: Ilya Rosenberg v. Sensel, Inc. et al. Case No.: 25CV457782

This is an action for discrimination and wrongful termination brought by plaintiff Ilya Rosenberg (Plaintiff) against several defendants including Sensel, Inc., his former employer. The original complaint was filed in January 2025. The operative first amended complaint (FAC) was filed in August 2025 and states eleven causes of action: (1) failure to engage in interactive process; (2) medical condition discrimination; (3) failure to accommodate; (4) wrongful termination; (5) retaliation (Lab. Code, § 1102.5); (6) defamation; (7) inspection of corporate records; (8) fraudulent concealment; (9) aiding and abetting fraud; (10) intentional interference with prospective economic advantage; and (11) violation of the Uniform Voidable Transactions Act (UVTA). There are no exhibits attached to the FAC.

Now before the court is a demurrer to the FAC by defendant Cirque Corporation (Cirque), opposed by Plaintiff.

LEGAL STANDARDS FOR DEMURRER

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations but does not accept as true contentions, deductions or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Code of Civil Procedure section 430.60 states that “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” The California Rules of Court also require that the demurrer itself (distinct from a supporting memorandum) specify the target of any objection and the grounds. (See Cal.

Rules of Court, rules 3.1103(c), 3.1112(a), 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”].)

The court cannot consider extrinsic evidence when ruling on a demurrer. That includes declarations. The court has considered the declaration from Cirque’s counsel only to the extent it describes the meet and confer efforts required by statute. The court has not considered the declaration filed by Plaintiff’s counsel Cindy Lee with the opposition. While a demurring party is required to submit a declaration discussing meet and confer efforts, there is no authority permitting an opposing party to submit declarations. Finally, “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273.)

DISCUSSION

Cirque demurs to the FAC’s ninth, tenth, and eleventh causes of action, the only causes of action alleged against it, on the ground that they each fail to state sufficient facts.

Ninth Cause of Action

“California courts have long held that liability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially 10

assisted . . . . ‘The words ‘aid and abet’ as thus used have a well understood meaning, and may fairly be construed to imply an intentional participation with knowledge of the object to be attained.’” (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145-1146 (Casey), internal citations omitted.) Liability for aiding and abetting also depends upon the underlying tort being adequately pleaded. (Id. at p. 1144 [explaining that “[l]iability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person . . . gives substantial assistance or encouragement to the other to so act”].)

Critically, “[t]he defendant must have ‘actual knowledge of the specific primary wrong the defendant substantially assisted.’” (Hooked Media Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 351, quoting Casey, supra, 127 Cal.App.4th at p. 1145.) A “conclusory allegation that [the defendant] was ‘aware’ of [general wrongdoing] is manifestly insufficient.” (George v. eBay, Inc. (2021) 71 Cal.App.5th 620, 641 (George).) “Moreover, knowledge alone, even specific knowledge, is not enough to state a claim for aiding and abetting.

California law ‘necessarily’ requires that for aiding and abetting liability to attach, a defendant have made a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act.” (George, supra, 71 Cal.App.5th at p. 641, quoting American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1476.) This is because “‘[m]ere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting. ‘As a general rule, one owes no duty to control the conduct of another.’” (Austin B. v.

Escondido Union School District (2007) 149 Cal.App.4th 860, 879, internal citations omitted.)

The underlying eighth cause of action for fraudulent concealment is not alleged against Cirque and is alleged in a conclusory fashion. The ninth cause of action (FAC at ¶¶ 133-139) is also alleged in conclusory fashion and so currently fails to state sufficient facts. Incorporating all prior allegations by reference does not cure this defect. In particular, the ninth cause of action fails to adequately allege how Cirque made a conscious decision to participate in the other defendants’ fraudulent concealment of facts from Plaintiff (the only tort it allegedly aided and abetted).

Nor does it allege how Cirque gave substantial assistance or encouragement to the fraudulent concealment. Simply entering into an agreement with Sensel, Inc., years after the concealment allegedly began, cannot itself constitute either a conscious decision to participate in tortious activity for the purpose of aiding fraudulent concealment or the providing of substantial assistance or encouragement.

Cirque’s demurrer to the ninth cause of action on the ground that it fails to state sufficient facts is sustained.

A plaintiff bears the burden of demonstrating that a defect identified on demurrer could be cured through amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Plaintiff’s opposition does not meet that burden. It claims that additional facts could be alleged, but does not explain how those facts would cure the defect. Because this is the first pleading challenge in this case to be heard by the court, the court will grant leave to amend. The court does not grant leave to add new claims or parties.

Tenth Cause of Action

To state a cause of action for intentional interference with prospective economic relations, a plaintiff must show “(1) the existence, between the plaintiff and some third party, 11

of an economic relationship that contains the probability of future economic benefit to the plaintiff, (2) the defendant’s knowledge of the relationship, (3) intentionally wrongful acts designed to disrupt the relationship, (4) actual disruption of the relationship, and (5) economic harm proximately caused by the defendant’s action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) “Intentionally interfering with prospective economic advantage requires pleading that the defendant committed an independently wrongful act... [a]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Ixchel Pharma, LLC v.

Biogen, Inc. (2020) 9 Cal.5th 1130, 1142; see also Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393 [stating that “a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful ‘by some measure beyond the fact of the interference itself’”].)

The tenth cause of action (FAC at ¶¶ 140-148) is also alleged in conclusory fashion. The only independently wrongful act alleged is Cirque’s purported aiding and abetting of other defendants’ alleged fraudulent concealment. (See FAC at ¶ 143.) Because the ninth cause of action currently fails to state sufficient facts, the tenth cause of action lacks an independently wrongful act by Cirque and also fails to state sufficient facts.

Cirque’s demurrer to the tenth cause of action on the ground that it fails to state sufficient facts is sustained. Because this is the first pleading challenge to be heard by the court in this case, Plaintiff is granted leave to amend.

Eleventh Cause of Action

As a statutory cause of action, Plaintiff’s UVTA claim must be pleaded with particularity. (Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) When a statutory cause of action is alleged, “the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.” (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d. 1, 5.)

The UVTA is codified at Civil Code section 3439 et seq. “A transfer made ... by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made ..., if the debtor made the transfer ... as follows: [¶] (1) With actual intent to hinder, delay, or defraud any creditor of the debtor.” (Civ. Code, § 3439.04, subd. (a); unspecified statutory references are to the Civil Code.) Transfer of a property by a debtor is thus a necessary element of a fraudulent conveyance claim. (§ 3439.04, subd. (a)(1).)

A creditor is defined in the UVTA as “a person that has a claim.” (§ 3439.01, subd. (c).) A claim is “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” (§ 3439.01, subd. (b).) A “debt” is “liability on a claim”; and a “debtor” is “a person that is liable on a claim.” (§ 3439.01, subds. (d) & (e).) The person or entity to whom the assets are transferred (usually but not always a defendant) may be referred to as the “third party” or “transferee.”

The goal of such a cause of action is not to obtain judgment, but rather to collect on the claim. If the transfer satisfies the provisions of section 3439.04, subdivision (a)(1) or (2), it is voidable. 12

The UVTA provides two methods of establishing a fraudulent transfer. First, actual fraud is a transfer made with “actual intent to hinder, delay or defraud any creditor.” (§ 3429, subd. (a)(1).) Second, constructive fraud requires a showing that the debtor did not receive “reasonably equivalent” value for the transfer, and that the transfer was made when the debtor was engaged in a transaction for which his or her remaining assets were unreasonably small relative to the size of the transaction or he or she intended to incur debts beyond his or her ability to pay them. (§ 3439.04, subd. (a)(2)(A), (B).) The eleventh cause of action (FAC at ¶¶ 149-155) does not allege constructive fraud.

Actual fraud may be inferred from certain types of conduct, i.e., “badges of fraud.” There are 11 such badges of fraud: Whether the transfer or obligation was to an insider; Whether the debtor had retained possession or control of the property transferred after the transfer; Whether the transfer or obligation was disclosed or concealed; Whether the debtor was sued or threatened with suit before the transfer was made or obligation was incurred; Whether the transfer was of substantially all of the debtor’s assets; Whether the debtor has absconded; Whether the debtor had removed or concealed assets; Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; Whether the transfer had occurred shortly before or shortly after a substantial debt was incurred; and Whether the debtor had transferred the essential assets of the business to a lienor who had transferred the assets to an insider of the debtor. (§ 3439.04, subdivision (b)(1)-(11).)

A creditor bringing a claim under section 3439.04, subdivision (a) must prove the elements of the claim by a preponderance of the evidence. (Civ. Code § 3439.04(c).) At the same time, “whether a conveyance is made with fraudulent intent is a question of fact.” (Annod Corp, v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1294; see also Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 834 (Filip).) “There is no minimum number of factors that must be present before the scales tip in favor of finding of actual intent to defraud. This list of factors is meant to provide guidance to the trial court, not compel a finding one way or the other.” (Filip, at p. 834.)

The eleventh cause of action is not alleged with the particularity required for a statutory cause of action. Incorporating prior allegations by reference does not cure this defect. The FAC fails to allege any violation of the UVTA by Cirque. The cause of action focuses primarily on conduct by the “Sensel Defendants,” defined as defendants Sensel, John Todd, and Aaron Zarraga. (FAC at ¶ 4.) It alleges plaintiff suffered emotional distress “from Cirque’s actions,” but does not describe those actions. (FAC, ¶ 154.) The ninth and tenth causes of action do not provide any support for the eleventh causes of action as alleged against Cirque because they both currently fail to state sufficient facts.

The allegation that the “Cirque-Sensel Agreement” was actual fraud for purposes of the UVTA (FAC at ¶ 151) is made on information and belief only. A party cannot include the phrase “information and belief,” without more. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-59.) To plead an allegation on the basis of information and belief, a plaintiff must allege the facts or information that led it to infer or believe the truth of the ultimate factual allegation. (Ibid.; see also Brown v. USA Taekwondo (2019) 40 Cal.App.5th 100, 1106 [“where factual allegations are based on information and belief, the 13

plaintiff must allege ‘information that “lead[s] [the plaintiff] to believe that the allegations are true”’”].) Allegations made on “information and belief” that lack supporting information are not accepted as true on demurrer.

Cirque’s demurrer to the eleventh cause of action on the ground that it fails to state sufficient facts as alleged against it is sustained. While the opposition fails to meet Plaintiff’s burden to show how the defect could be cured by amendment, the court will grant leave to amend because this is the first pleading challenge in the case to be heard by the court.

CONCLUSION

Defendant Cirque’s demurrer to the FAC’s ninth, tenth and eleventh causes of action is sustained with leave to amend.

Any amended pleading must be filed and served no later than September 25, 2026.

The court will prepare the order.

- oo0oo -

14