Greenberg, Stuart et al. v. Jacques, Michael et al.

Court were to preside thereat (except for the power of contempt which is specifically reserved to the Court). The referee shall submit a written report to the parties and to the Court within twenty (20) days after the completion of the hearing, containing a proposed order and proposed sanctions if deemed appropriate. Any objections to the report shall be filed with the Court no later than ten (10) calendar days after the date of mailing the report to counsel, which objections shall notice a hearing; copies of the objections and responses thereto shall be served upon the special referee.

The fees for the referee and for any Certified Shorthand Reporter shall be paid equally by the parties within ten (10) days of billing, according to their customary fee. However, the discovery referee may recommend that one or more of the parties pay more than an equal share of fees. The Court reserves jurisdiction to make such other and further orders with respect to the special referee as may be just and proper. Plaintiff shall prepare and submit a form of order consistent with this ruling within 2 weeks.

8-9. 23CV01923 Greenberg, Stuart et al. v. Jacques, Michael et al.

EVENT: (1) Defendant William Jacques’ Demurrer to Second Amended Complaint (2) Defendant Michael Jacques and Alpha Omega Investment Services, LLC’s Motion to Compel Further Responses and Production of Documents

Defendant Michael Jacques and Alpha Omega Investment Services, LLC’s Motion to Compel Further Responses and Production of Documents This discovery motion, along with all other pending and future discovery disputes, is referred to the discovery referee. At the previous hearing counsel indicated a stipulation to select Douglas Jacobs as referee was forthcoming. The Court will hear from counsel re: status.

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Defendant William Jacques’ Demurrer to Second Amended Complaint

Intentional Misrepresentation The demurrer is OVERRULED. Defendant contends there are no misrepresentations of fact, only character assessments. In reviewing the pleading, paragraph 241 clearly alleges two statements of fact – “Michael Jacques was someone who honored his obligations” and “he [William Jacques] was not aware of Michael Jacques’ financial state”. As to the other representations that Michael was “financially trustworthy” and that William “was not aware of anything that should dissuade Plaintiff from lending to Michael Jacques”, an argument could be made that these statements are opinions.

However, even if they were opinions, when an opinion is provided as implying facts which justify a belief in the truth of the opinion, such statements may be actionable, see Cohen v. S & S Constr. Co. (1983) 151 Cal.App.3d 941, 946. On demurrer we make all reasonable inferences in favor of Plaintiff. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713) In sum, several statements are clearly statements of fact, and the statements which are debatable survive demurrer. Defendant contends the pleading negates falsity, stating the knowledge of the 2011 bankruptcy does not equate to knowledge of Michael Jacques’ financial condition in mid- 2017 when the statement was made.

Defendant argues historical events are too attenuated concerning the statements allegedly made in 2017. These arguments essentially go to the weight of the allegations. While these arguments might be persuasive to the trier of fact, our task is to determine whether the allegations state a legally viable cause of action, not whether Plaintiff is likely to succeed at trial. In a similar vein, William challenges how representations made in 2017 could demonstrate reasonable reliance and causation for business transactions occurring in 2020.

However, the pleading alleges reasonable reliance and causation in paragraphs 246 and 247. Weil & Brown California Practice Guide (The Rutter Group) (2022) Civil Procedure Before Trial, Demurrer, [7:44] No matter how unlikely: The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action – not whether they are true. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on demurrer. [Del E. Webb Corp. v.

Structural Materials Co. (1981) 123 CA3d 593, 603]

Constructive Fraud The demurrer is SUSTAINED WITH LEAVE TO AMEND.

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Because fiduciary/confidential relationship is an essential element of fraud, it must be plead with specificity, see Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 961. Here, the allegation that Plaintiff and Defendant were in a 5 + year business relationship is not sufficiently specific to establish a confidential relationship. Other allegations concerning trust and a duty to disclose are conclusory.

Concealment The demurrer is SUSTAINED WITH LEAVE TO AMEND. CACI 1901 provides (4) distinct theories in which a Plaintiff can establish the first element of a concealment claim. The only theory applicable based on the operative pleading appears to be intentional failure to disclose facts in the context of a fiduciary or confidential relationship. As discussed, the pleading as constructed fails to sufficiently allege a confidential relationship. As a result, the demurrer is sustained.

Negligent Misrepresentation The demurrer is SUSTAINED WITH LEAVE TO AMEND. Negligent misrepresentation requires factual allegations establishing that defendant owed plaintiff a duty. (See Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 477) As with fraud, negligent misrepresentation must be plead with specificity. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792-793) The pleading does not expressly allege a duty of care. The opposition appears to reference the existence of a fiduciary or confidential relationship as a basis for imposing a duty. As discussed, existence of confidential relationship has not been sufficiently pled. To the extent leave to amend is granted, Plaintiff shall amend within 20 days’ notice of this order. Defendant William Jacques shall prepare the form of order within two weeks.

10. 23CV02027 Midland Credit Management, Inc v. Baxter, Elana

EVENT: Motion to Request a Judgment Nunc Pro Tunc

Motion to Request a Judgment Nunc Pro Tunc is GRANTED. The Court will sign the proposed order.

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