Carrier v. PS80 Partners, LLC

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50. Carrier v. Defendant Ryan Patrick Sauter’s demurrer to the Second PS80 Amended Complaint of Mateusz Carrier is OVERRULED. Partners, Defendant asserts several bases for the demurrer: (1) LLC plaintiff failed to attach the contract; (2) defendant is not a 2024- signatory to the contract; and (3) the fraud allegation is not 01372839 sufficiently asserted.

Failure to Attach the Contract.

The contract does not need to be attached to the complaint. A written contract may be pleaded either by its terms, set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference, or by its legal effect. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

The allegations in the operative complaint identify the parties (Carrier and PS80), the date of the contract (April 15, 2019), the nature of the instrument (written promissory note), and the substance of the relevant terms: the principal amount ($442,000), the interest rate (10 percent per annum), and the maturity date (January 15, 2020). These allegations are sufficient when pleading by legal effect rather than attaching the contract itself. Therefore, the demurrer on this ground is OVERRRULED.

Non-Signatory Liability.

A non-party to a contract can be liable for its breach or non- performance under alter-ego or successor liability. (Rowe v. Exline (2007) 153 Cal.App.4th 1276 [alter-ego]; Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809 [successor liability].) The operative complaint sufficient alleges both theories. (Sec. Amd. Compl. ¶¶ 10-16.) Therefore, the demurrer on this ground is OVERRRULED.

Specificity of Fraud Allegations.

To state a claim for fraudulent concealment, a plaintiff must allege:

1. the defendant concealed or suppressed a material fact; 2. the defendant had a duty to disclose the fact to the plaintiff; 3. the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; 4. the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed

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or suppressed fact; and 5. as a result of the concealment or suppression of the fact, the plaintiff sustained damage. Nissan Motor Acceptance Cases, (2021) 63 Cal.App.5th 793.

In the case of alleged concealment, the specificity obligation is lessened. (Alfaro v. Community Housing Impr. Syst. (2009) 171 Cal. App.4th 1356). Here, plaintiff has met the pleading standard for fraud by concealment. The operative complaint sufficiently alleges concealed or suppressed material facts. (Sec. Amd. Compl. ¶¶ 20-25, 28-29, 31-38.) As such, the demurrer to the fourth cause of action is OVERRULED.

Defendants shall answer the second amended complaint within ten days.

The case management conference is continued to February 22, 2027 at 9:00 a.m.

The order to show cause is discharged.

Sauter shall give notice of this ruling.

51. Dimar Specially appearing defendant Cassandra Elizabeth Johnston’s Enterprises, motion to set aside default and default judgment, and to Inc. v. dismiss for failure to serve, is GRANTED. (See Code Civ. Proc., Mahmood §§ 473, subd. (d), 583.210, 583.250; California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 214-215 (Hoehn).) 2020- 01137619 The court ORDERS the following vacated and set aside: (1) Johnston’s default entered on 6/12/24, and (2) the default judgment entered on 11/22/24 as to Johnston only.

The court further ORDERS plaintiff Dimar Enterprises, Inc. dba Drymaster’s operative fourth amended complaint (4AC) dismissed without prejudice as to Johnston only.

Code Civ. Proc., § 473, subd. (d). Johnston has shown that her default and the default judgment entered against her are void due to improper service. (See Code Civ. Proc., § 473, subd. (d) [“The court ... may, on motion of either party after notice to the other party, set aside any void judgment or order.”]; see also California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 214-215 (Hoehn).)

Plaintiff’s proof of service of the summons and operative complaint on Johnston shows service was effected by a registered process server. (Krause-Leemon Decl. at Ex. D.) A proof of service by a registered process server that complies with the applicable statutory requirements creates a