Plaintiff’s Demurrer and Motion to Strike Portions of Defendants Michal Jacques’ and Alpha Omega Services Inc.’s Cross-Complaint and First Amended Cross Complaint
Judge Benson – Law & Motion – Wednesday, June 17, 2026 @ 9:00 AM
1. 23CV01364 Dickson, Amber Bowen et al. v. Amber Grove Place, LLC et al.
EVENT: Case Management Conference
The Court will conduct a hearing and hear from counsel re: status of settlement.
2. 23CV01923 Greenberg, Stuart et al v. Jacques, Michael et al
EVENT: Plaintiff’s Demurrer and Motion to Strike Portions of Defendants Michal Jacques’ and Alpha Omega Services Inc.’s Cross-Complaint and First Amended Cross Complaint (Continued from 5/27/26)
DEMURRER
Was Michael Jacques Required to Obtain Leave of Court to File the Cross Complaint?
CCP 428.50. Time for filing cross-complaint; Leave of court to file cross-complaint (a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.
Preliminarily, neither side has cited a case, nor has the Court found a case addressing whether leave to file a cross complaint is required when the underlying Complaint (or in this instance First Amended Complaint) has been amended but is unchanged as it pertains to the cross-complainant. With that in mind, the Court finds leave of court was not required. The plain language of the statute allows the filing of a cross-complaint without leave under subdivision (a) if it is filed contemporaneously with the answer. Thus, even if the Second Amended Complaint did not alter the allegations or legal theories with respect to Michael Jacques, it essentially opened the door to the filing of a cross complaint in conjunction with an answer to the Second Amended Complaint.
Cause of Action No. 1 – Assault and Battery
The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Per CCP 335.1, the limitations period for assault and battery is two years. The alleged incident occurred in 2022. Thus, on the face of the pleading the cause of action is time barred considering Michael Jacques’ cross complaint was filed on February 3, 2026.
A cross-complaint may relate back to the filing of the complaint for statute of limitations purposes if it arises out of the same transaction or occurrence. (See
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Cause of Action No. 2 – Violation of Finance Code 22009, et seq.
The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. There is no private right of action for violation of the finance code. (See Lagrisola v. North American Financial Corp. (2023) 96 Cal.App.5th 1178, 1196)
Cause of Action No. 3 - Breach of Contract
The Demurrer is SUSTAINED WITH LEAVE TO AMEND. With respect to the breach element, the pleading must specifically plead breach of agreed upon contractual provision. (See Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th 266, 272 citing Levy v. State Farm Mutual Automobile Inc. Co. (2007) 150 Cal.App.4th 1,5) The First Amended Cross Complaint does not identify the specific contractual provision preventing Greenberg from “changing his mind” and setting up an LLC. Nor does the pleading specifically allege any other breaches with corresponding contractual provisions.
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Cause of Action No. 4 – Trade Libel
The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Mr. Greenberg challenges this cause of action on (3) grounds: statue of limitations, failure to allege sufficient facts, and litigation privilege.
Regarding the statute of limitations, this again invokes the question of whether the claim arises out of the same transaction or occurrence as Mr. Greenberg’s underlying complaint. The moving papers do not really explain why this cause of action does not arise from the same transaction and occurrence. This cause of action alleges that Michael Jacques was prevented from performing his obligations under a 2022 settlement agreement between himself and Mr. Greenberg because of allegedly libelous statements made by Mr.
Greenberg to business associates and property managers, as well as a UCC-1 filing. In reviewing the initial Complaint and the FAC that was filed shortly thereafter, the pleadings identify the settlement agreement and alleged breaches of the settlement agreement. As a result, the Court finds the Trade Libel cause of action does arise from the initial pleadings in this case and therefore relates back to those filings. As a result, the cause of action is not time barred because the alleged conduct occurred in late 2022 early 2023, and this action was filed July 2023.
As to the challenge that the pleading does not allege sufficient facts, Mr. Greenberg’s arguments are not sufficiently developed on this issue. While the Court understands the argument in a sense, the legal analysis falls short. Nevertheless, the Court is persuaded that the litigation privilege bars this claim. The claim appears to be based on a letter from Mr. Greenberg’s attorney informing the recipient of pending litigation and a UCC-1 filing. Thus, the gravamen of the letter qualifies as litigation related conduct. Michael Jacques’ claim appears to be premised on the theory that these communications disrupted his ability to sell AOIS assets. However, he cannot get around the fact that the underlying conduct was related to judicial proceedings and/or quasi-judicial proceedings. As a result, the demurrer is sustained without leave to amend.
Cause of Action No. 5 – Breach of Fiduciary Duty
The demurrer is OVERRULED. Ostensibly Mr. Greenberg argues that because he was not a manager of the LLC during the period of time he allegedly violated this statute (2017-2022) he can only be liable under subdivision (d) of Corporations Code 17704.09, and that based on the language of subdivision (f), subdivision (d) does not impose fiduciary duties. Subdivision (a) states that fiduciary duties are set forth in subdivisions (b) and (c).
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The Court disagrees with this interpretation. There is no dispute that subdivision (d) is the only subdivision in the statute applicable to non-managing members. Subdivision (d) states that members shall discharge “duties” ... “to” ... “other members”. Considering the statute is entitled “Fiduciary Duties” the Court struggles to see how the word “duties” under subdivision (d) would not implicate fiduciary duties. Ultimately, whether subdivision (d) qualifies as a fiduciary duty or not, it clearly imposes a legal obligation on members. We ignore erroneous or confusing labels ... if the complaint pleads facts which would entitle the plaintiff to relief. (A.J. Fistes Corp. v. GDL Best Contractors, Inc (2019) 38 Cal.App. 677, 695) The trial court is obligated to look past the form of a pleading to its substance. (Id)
Cause of Action No. 6 – Intentional Infliction of Emotional Distress.
The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. The limitation period for IIED is 2 years, see Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 853. Consistent with the assault/battery discussion, because this personal injury claim does not arise out of the same transaction or occurrence as the allegations made by Mr. Greenberg in the complaint and FAC, this cause of action does not relate back to the initial pleadings. As a result, the IIED cause of action is time barred.
Cause of Action No. 7 – Cancellation of Instrument [Civ. Code 3412].
The demurrer is OVERRULED. Mr. Greenberg makes two challenges – that the cause of action is barred by the statute of limitations and fails to allege sufficient facts constituting a cause of action. As to the statute of limitations, the initial complaint appears to address the amended agreement, although it dates the agreement for 9/22/22, not 9/21/22. Because the Complaint implicates the agreement, the cause of action relates back to the Complaint and is therefore not time barred. As to sufficiency of the allegations, the pleading at a minimum sufficiently alleges the amended agreement was the by product of duress. Reading the complaint as a whole and in context, the duress allegations appear to be tied to the alleged assault in 2022.
MOTION TO STRIKE
As to paragraph 6, the phrase “commercial lender” is stricken. Regarding paragraph 12, the word “libelous” is stricken. The motion is denied in all other respects. To the extent leave to amend is granted, Michael Jacques shall amend within 20 days’ notice of this order. Mr. Greenberg shall prepare and submit the form of order.
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