Velihosha v. Horngun Corp, a California corporation, et al.

Counsel has complied with the procedural and statutory requirements. Thus, the Court grants Counsel's motion to be relieved as counsel.

Department 516 Hearing Date: September 1, 2026 Case Name: Velihosha v. Horngun Corp, a California corporation, et al. Case No.: 25STCV33217 Matter: Demurrer with Motion to Strike Moving Party: Defendants Dmytro Voznyi and Horngun (erroneously sued as "Horngun Corp") Responding Party: Plaintiff Yuri Velihosha Tentative Ruling: Defendants Dmytro Voznyi and Horngun's demurrer is sustained in its entirety. Defendants Dmytro Voznyi and Horngun's motion to strike is rendered moot. Plaintiff Yuri Velihosha ("Plaintiff") filed this action against Defendants Dmytro Voznyi ("Voznyi"), Horngun ("Horngun") (collectively "Defendants"), and Does 1 through 50.

The First Amended Complaint ("FAC") alleged 12 causes of action for: (1) breach of oral partnership agreement; (2) breach of the covenant of good faith and fair dealing; (3) breach of fiduciary duty-partnership; (4) breach of fiduciary duty-corporate; (5) breach of fiduciary duty-derivative; (6) fraud by concealment; (7) violation of Penal Code section 496; (8) money had and received; (9) accounting; (10) unjust enrichment; (11) conversion; and (12) declaratory relief. On May 11, 2026, the Court sustained Defendants' demurrer to Plaintiff's FAC in its entirety with leave to amend.

Defendants' motion to strike was rendered moot. On June 10, 2026, Plaintiff filed a Second Amend Complaint ("SAC") alleging 10 causes of action for: (1) breach of oral partnership agreement; (2) breach of the covenant of good faith and fair dealing; (3) breach of fiduciary duty-partnership; (4) breach of fiduciary duty-corporate; (5) fraud by concealment; (6) violation of Penal Code section 496; (7) money had and received; (8) accounting; (9) conversion; and (10) declaratory relief.

Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.¿(Code Civ. Proc., Sec. 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law.¿(Postley v.

Harvey (1984) 153 Cal.App.3d 280, 286.)¿"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., Sec. 452.)¿The court " ' "treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . ." ' "¿ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.¿(Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court."¿(Code Civ. Proc., Sec. 436.) "Immaterial" or "irrelevant" matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ.

Proc., Sec. 431.10, subds. (b)(1)-(3).) Request for Judicial Notice Plaintiff requests that the Court take judicial notice of his SAC and the Court's ruling on May 11, 2026. The Court grants the requests for judicial notice pursuant to Evidence Code section 452, subdivision (d).

Analysis

Meet and Confer Pursuant to Code of Civil Procedure section 430.41, "a demurring party is required to meet and confer in person, by telephone, or video conference with the party that filed the pleading. . . ." (Code Civ. Proc. Sec. 430.41, subd. (a).) A moving party in a motion to strike must meet and confer before filing the motion. (Code Civ. Proc. Sec.435.5, subd. (a).) Defendants contend that on July 13, 2026, the parties met and conferred over video conference. (Tabibkhoei Decl., P. 3.) Thus, the parties satisfied their meet-and-confer obligations. Demurrer Defendants demur to Plaintiff's SAC for failure to allege sufficient facts. Failure To Allege Sufficient Facts First, Second, and Third Causes of Action- Breach of Oral Partnership,

Breach of the Covenant of Good Faith and Fair Dealing, and Breach of Fiduciary Duty-Partnership "'Partnership agreement' means the agreement, whether written, oral, or implied, among the partners concerning the partnership, including amendments to the partnership agreement." (Corp. Code, Sec. 16101, subd. (10).) "[A] cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v.

Goldman (2011) 51 Cal.4th 811, 821.) "To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect." (Twaite v. Allstate Ins. Co. (1989) 216 Cal.App.3d 239, 252.) "California law is clear that there is no contract until there has been a meeting of the minds on all material points." (Banner Entertainment, Inc. v. Superior Court (Alchemy Filmworks, Inc.) (1998) 62 Cal.App.4th 348, 357-358.) Defendants contend that Plaintiff has not cured its previous defect because Plaintiff has not alleged the material terms of the oral agreement, and as a result is unable to allege a breach of the oral partnership agreement between the parties before the formation of Horngun.

In opposition, Plaintiff contends that he has alleged sufficient facts and other terms not mentioned are incorporated by the California Revised Uniform Partnership Act. "The terms of a partnership are controlled by the partnership agreement, or by the California Revised Uniform Partnership Act (UPA) if the agreement is silent on an issue. (Sec. 16103, subd. (a) ["[R]elations among the partners and between the partners and the partnership are governed by the partnership agreement. To the extent the partnership agreement does not otherwise provide, this chapter governs relations among the partners and between the partners and the partnership."]." (Jones v.

Goodman (2020) 57 Cal.App.5th 521, 531.) Here, Plaintiff alleges a partnership existed between Plaintiff and Voznyi. Plaintiff alleges that the parties intended to retain equal ownership of each of their business ventures, to act in good faith, to not take steps to injure each other, and to split all costs and profits. (SAC, P.P. 46.) Plaintiff also alleges that "[n]either partner could take any action to compete with the business, or to sell his interest in the partnership to a third party without the consent of the other partner." (Ibid.)

The SAC also alleges that when the parties signed the Articles of Incorporation under Plaintiff's name, the parties intended to retain equal partnership. (SAC, P. 47.) However, Plaintiff alleges that the breach occurred when: Voznyi, by wrongfully stealing the assets of Horngun, claimed that they were Voznyi's personal property, and by wrongfully forcing Plaintiff to relinquish his shares in Horngun for a small

fraction of their true worth. Voznyi threatened of take unilateral control of the company's electronic assets and leave Plaintiff with the company's debts. (SAC, P. 49.) However, Plaintiff also alleges that he was compensated for his shares in Horngun; most importantly,, there is no allegation that the Horngun shares were an asset of the alleged partnership or a term of the oral partnership agreement that could be breached. (SAC, P. 29.) The SAC alleges that each party owned 50 shares, not the partnership. (SAC, P.P. 48.)

Furthermore, the SAC does not allege that Voznyi sold Plaintiff's shares or competed with Horngun. "There is no obligation to deal fairly or in good faith absent an existing contract." (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031, reh'g denied and opinion modified (Jan. 6, 1993), as modified on denial of reh'g (Mar. 25, 1993).) Because Plaintiff has not alleged the existence of an oral partnership agreement, Plaintiff's second and third causes of action for breach of the covenant of good faith and fair dealing and breach of fiduciary duty- partnership also fail specifically, that the alleged conduct under the third cause of action occurred in relation to Voznyi purchasing Plaintiff's shares. (SAC, P.P. 27, 29, 30, 59, 63.)

Thus, the Court sustains Defendants demurrer to the first, second, and third causes of action. Fourth Cause of Action--Breach of Fiduciary Duty-Corporate "In the absence of evidence of any similar vulnerability or incapacity, we decline to extend the scope of fiduciary obligations to an arms-length negotiation for the sale of shares in a corporate enterprise." (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1162 (Persson).) As an initial matter, because Plaintiff has not alleged a viable cause of action for breach of oral partnership between Plaintiff and Voznyi, Plaintiff's cause of action also fails outright.

However, another basis is that Plaintiff alleges in his SAC, that both he and Voznyi owed an equal amount of shares, making them equal. (Persson, supra, 125 Cal.App.4th at p. 1162 ["'The vulnerability that is the necessary predicate of a confidential relation ... usually arises from advanced age, youth, lack of education, weakness of mind, grief, sickness, or some other incapacity.'"].) Plaintiff does not make such allegations in his SAC. In opposition, Plaintiff contends that the parties are not in arm's length because Voznyi was the CFO and Secretary of Horngun.

However, the Court is not persuaded by Plaintiff's argument because he was the CEO of Horngun. Plaintiff also opposes the claim that Voznyi was acting as the majority shareholder and cites to Jones. However, the Court is not persuaded by Plaintiff's

reliance on Jones because Plaintiff and Voznyi were equal shareholders until Plaintiff sold his shares. (Jones v. H. F. Ahmanson & Co. (1969) 1 Cal.3d 93, 108 (["majority shareholders may not use their power to control corporate activities to benefit themselves alone or in a manner detrimental to the minority."]) Once Voznyi purchased Plaintiff's shares, Plaintiff was no longer a shareholder in Horngun. Thus, the Court sustains Defendants' demurrer to Plaintiff's fourth cause of action without leave to amend.

Fifth Cause of Action--Fraud by Concealment "[A] cause of action for fraud by concealment a plaintiff must show (1) concealment of a material fact by the defendant; (2) the defendant had a duty to disclose that fact to the plaintiff; (3) the defendant concealed the fact with an intent to induce reliance by the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he or she did with knowledge of the concealed fact; and (5) the plaintiff suffered injury." (Doe v. Superior Court (2015) 237 Cal.App.4th 239, 244.)

Fraud must be alleged with particularity and "necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.'"" (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 43.) "If the duty allegedly arose by virtue of the parties' relationship and defendant's exclusive knowledge or access to certain facts, . . . the complaint must also include specific allegations establishing all the required elements, including (1) the content of the omitted facts, (2) defendant's awareness of the materiality of those facts, (3) the inaccessibility of the facts to plaintiff, (4) the general point at which the omitted facts should or could have been revealed, and (5) justifiable and actual reliance, either through action or forbearance, based on the defendant's omission." (Id. at p. 43-44.)

Defendants argue that the Plaintiff has not alleged facts that Voznyi concealed facts from the Plaintiff, and that Plaintiff did not have access to the information. Defendants also contend that Plaintiff has not met the required particularity requirement for his cause of action. In opposition, Plaintiff argues that Voznyi, as CFO for Horngun possessed superior knowledge when allegedly using Plaintiff's personal credit cards for purchases in relation to Horngun. At the previous hearing, the Court stated that Plaintiff did not allege he was unaware of the alleged transactions because he has access to his accounts.

While Plaintiff argues that Voznyi had superior knowledge, it is unclear how Voznyi knew more. Plaintiff alleges that he knew about the alleged transactions on July 11, 2025. (SAC, P.P. 35-38.) Plaintiff also fails to allege facts that Voznyi acted with the intent to induce Plaintiff. Plainitff in a conclusory manner alleges that "Voznyi intended to deceive [Plaintiff] from his illegal and unlawful acts and [Plaintiff] relied on Voznyi's silence." (SAC, P. 82.)

Thus, the Court sustains Defendants' demurrer as to Plaintiff's fifth cause of action without leave to amend. Sixth Cause of Action--Violation of Penal Code section 496 "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished. . ." (Pen.

Code, Sec. 496 subd. (a).) "To prove theft, a plaintiff must establish criminal intent on the part of the defendant beyond "mere proof of nonperformance or actual falsity." [Citation.] This requirement prevents "'[o]rdinary commercial defaults'" from being transformed into a theft." (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 361-362.) Plaintiff alleges that Defendants stole in two categories of Plaintiff's property. First, Plaintiff alleges that Defendants "obtained by false or fraudulent pretense the money, shares, ownership interest in intellectual property and benefits of corporate ownership belonging to [Plaintiff], and Defendants actually received and took possession of [Plaintiff's] money, shares, ownership interest in intellectual property and benefits of corporate ownership, knowing that it was [Plaintiff's] property." (SAC, P. 90.)

Plaintiff also alleges that the second category is Plaintiff's personal credit cards. (SAC, P. 91.) As to the first category, the Court finds that Plaintiff has no claim under this cause of action because Plaintiff was paid for his stocks and interest in the intellectual property. (SAC, P.P. 29-30.) Plaintiff argues that this is based on circumstantial evidence. However, the Court is not persuaded by Plaintiff's argument. Plaintiff alleges that as a result of the "Agreement" to sell his stocks, Voznyi was "supposed to assume all responsibilities and potential liabilities" but breached this agreement. (SAC, P.P. 33-32.)

Plaintiff also alleges that several of the transactions were "relating to Horngun, such as Google advertising, Shopify, eBay, and Facebook." (SAC, P. 37.) As previously addressed by the Court, the Court also finds Switzer inapplicable for the proposition Plaintiff argues. (Switzer v. Wood (2019) 35 Cal.App.5th 116, 132.) In Switzer, the Court determined whether the plaintiff was entitled to treble damages in accordance with Penal Code section 496, subdivision (c).) (Id. at p. 120 ["we conclude that [plaintiff] is entitled to treble damages under section 496(c)."].)

Thus, the Court sustains Defendants' demurrer as to Plaintiff's sixth cause of action without leave to amend. Seventh Cause of Action--Money Had and Received ""A common count is not a specific cause of action ...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary

indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory."" (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) ""A cause of action for money had and received is stated if it is alleged [that] the defendant 'is indebted to the plaintiff in a certain sum "for money had and received by the defendant for the use of the plaintiff."' ..."" (Ibid.) "[T]he plaintiff must prove that the defendant received money "intended to be used for the benefit of [the plaintiff]," that the money was not used for the plaintiff's benefit, and that the defendant has not given the money to the plaintiff." (Ibid.)

The SAC alleges that Voznyi's use of Plaintiff's credit cards was for the money received. (SAC, P. 98.) Plaintiff alleges that the funds were intended for his benefit because he ultimately covered the debt. (Id. at P. 99.) However, Plaintiff makes contradictory allegations. A cause of action for money had and received requires a "certain sum." (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1622.) Plaintiff alleges, "[a]s a result of Defendants' failure to return money belonging to Plaintiff, Plaintiff is entitled to actual damages in an amount to be determined at trial." (SAC, P. 101.)

Thus, the Court sustains Defendants' demurrer as to Plaintiff's seventh cause of action. Eighth Cause of Action--Accounting "If a complaint sets forth all the facts necessary for the calculation of an account between the parties, recovery may be had in an action at law." (St. James Church of Christ Holiness v. Superior Court In and For Los Angeles County (1955) 135 Cal.App.2d 352, 359.) "[A] cause of action for accounting need only state facts showing the existence of the relationship which requires an accounting and the statement that some balance is due the plaintiff." (Brea v.

McGlashan (1934) 3 Cal.App.2d 454, 460.) Plaintiff argues that pursuant to Teselle, he has alleged sufficient facts to allow accounting in that it is a "means of discovery." (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 180.) However, the Court is not persuaded. In Teselle, the Court acknowledged that while a fiduciary relationship is not required, some sort of relationship is required. (Id. at p. 179.) Plaintiff alleges that "an accounting is therefore necessary as Plaintiff is entitled to an accounting of all of Horngun's revenues, expenses, distributions, compensation and other financial transactions." (SAC, P. 107.)

Here, Plaintiff had already sold his shares to Voznyi, making it that no relationship would warrant an accounting. Thus, the Court sustains Defendants' demurrer as to Plaintiff's eighth cause of action without leave to amend. Ninth Cause of Action--Conversion ""Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a

wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. [Citations.]" [Citation.] Money can be the subject of an action for conversion if a specific sum capable of identification is involved." (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 450-452.) The SAC alleges that Plaintiff has an ownership interest in shares in Horngun, shares in Horngun, and Horngun's assets. (SAC, P.P. 108-109.)

However, Plaintiff contradicts his allegations by alleging that he received compensation for his share in the stocks and Horngun. Plaintiff also alleges that Voznyi improperly charged approximately $33,000 to Plaintiff's personal credit card. (SAC, P.109.) "Credit card, debit card, or PayPal information may be the subject of a conversion." (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 212.) But, "a generalized claim for money not actionable as conversion." (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 397.)

Throughout the SAC, Plaintiff alleges different generalized amounts of Voznyi allegedly charged on Plaintiff's credit cards, this is insufficient. Thus, the Court sustains Defendants' demurrer as to Plaintiff's ninth cause of action. Tenth -- Declaratory Relief "Code of Civil Procedure section 1060 is clear: "Any person interested under a written instrument, ... or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court ... for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract."" (Ludgate Ins.

Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 604.) The SAC alleges that a live controversy exists regarding Horngun. (SAC, P. 115.) However, Plaintiff has alleged that he sold his stocks and rights to Horngun. Additionally, Plaintiff's cause of action is dependent upon his other causes of action, which the Court has determined have not alleged sufficient facts. Thus, the Court sustains Defendants' demurrer as to Plaintiff's tenth cause of action. Therefore, the Court sustains Defendants' demurrer in its entirety.

Motion

to Strike Defendants also move to strike portions of Plaintiff's SAC that make allegations to support punitive damages and the request for punitive damages. As a result of the ruling on the demurrer, the motion to strike is moot. Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not "sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment"]; Kong v.

City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 ["A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment."]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 ["When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend."].) The burden is on the complainant to show the Court that the pleading can be successfully amended. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff will have leave to amend as to the first, second, third, seventh, ninth, and tenth causes of action. Plaintiff has not demonstrated that he can amend the fourth, fifth, sixth, and eighth causes of action.

Conclusion

Defendants Dmytro Voznyi and Horngun's demurrer is sustained as to all ten causes of action. Defendants Dmytro Voznyi and Horngun's motion to strike is rendered moot. Plaintiff shall have leave to amend as to the first, second, third, seventh, ninth, and tenth causes of action and must file an amended pleading no later than October 1, 2026. Leave to amend is denied as to the fourth, fifth, sixth, and eighth causes of action. | Home -->)" -->