Oei vs. Abinante

But while unjust enrichment may or may not be a standalone cause of action, courts have stated that unjust enrichment is synonymous with restitution and allowed recovery where the plaintiff asserts a proper basis for recovering restitution. (Durrell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-88.) Such bases include quasicontract, fraud, duress, conversion, or similar conduct. (Durrell, 183 Cal.App.4th at 1370; McBride, 123 Cal.App.4th at 387-388.)

Abinante also argues that the third cause of action is duplicative of the first and second causes of action for breach of contract and common counts. Similarly, Abinante also argues that the Complaint fails to allege facts demonstrating the absence of an adequate legal remedy, which Abinante asserts is required when seeking equitable relief based on unjust enrichment.

In response, Plaintiff argues that the third cause of action is directed at Abinante’s individual conduct and notes that the Complaint intentionally excludes the contract allegations with Ascada from the third cause of action.

Plaintiff’s arguments appear to have merit. As noted above, the first and second cause of action are not

asserted against Abinante. And the third cause of action does not incorporate the contract allegations made in the first and second causes of action. (Compl., ¶ 81 [incorporating paragraphs 1-64 but not 65-80].)

The court determines that the demurrer to the third cause of action should be OVERRULED.

4th C/A (conversion)

The fourth cause of action is for conversion, which is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal. App. 4th 1395, 1404-05.) Where money, rather than an item of property, is involved, a cause of action for conversion can be stated only where the defendant is alleged to have interfered with the plaintiff’s possessory interest in a specific, identifiable sum. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal. App. 4th 267, 284.)

Abinante argues that the fourth cause of action for conversion fails because the Complaint does not allege facts showing a specific, identifiable property interest subject to conversion.

Plaintiff disagrees, arguing that money can be the subject of conversion where the claim involves a specific, identifiable sum.

Here, the Complaint’s allegations appear deficient. The Complaint alleges that Abinante substantially interfered with Plaintiff’s property by controlling Ascada’s bank accounts, preventing Plaintiff from accessing reimbursements made by Ascada. (Compl., ¶¶ 86-92.) The Complaint does not allege a possessory interest in a specific, identifiable sum of money belonging to Plaintiff. Rather, the Complaint alleges that “Plaintiff has suffered damages in an amount to be proven by trial but no less than $107,611.29”. (Compl., ¶ 91.)

Accordingly, the demurrer to the fourth cause of action is SUSTAINED, with 30 days leave to amend.

5th C/A (accounting)

An accounting cause of action requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting and that some balance is due to the plaintiff that can only be ascertained by an accounting. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) “Equitable principles govern, and the plaintiff must show the legal remedy is inadequate.... Generally, an underlying fiduciary relationship, such as a partnership, will support an accounting, but the action does not lie merely because the books and records are complex. Some underlying misconduct on the part of the defendant must be shown to invoke the right to this equitable remedy.” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 442.)

Abinante argues that the fifth cause of action for an accounting fails because (1) the Complaint fails to allege an inadequate legal remedy, (2) the complexity of the accounts do not warrant an accounting, (3) the claim is duplicative of the eighth cause of action, and (4) Plaintiff lacks standing because Plaintiff has not alleged a derivative action.

In response, Plaintiff argues that the elements required for an accounting claim are sufficiently pled, the claim is not duplicative, and the standing argument may not be asserted by Abinante.

The allegations in the Complaint appear sufficient to overcome the demurrer. Here, the Complaint alleges a business relationship between the plaintiff and defendants, misconduct by defendants, and that an accounting is needed to determine the balance owed to Plaintiff. (Comp., ¶¶ 93-98; see also ¶¶ 16, 28-32 [regarding factual allegations of Abinante’s control of, and alleged wrongful diversion of, corporate funds].) Also, this claim is not governed by Corporations Code section 1601 and is distinct from the cause of action for shareholder inspection rights.

Accordingly, the demurrer to the fifth cause of action is OVERRULED.

7th C/A (removal of director)

Corporations Code section 304 states:

“The superior court of the proper county may, at the suit of shareholders holding at least 10 percent of the number of outstanding shares of any class, remove from office any director in case of fraudulent or dishonest acts or gross abuse of authority or discretion with reference to the corporation and may bar from reelection any director so removed for a period prescribed by the court. The corporation shall be made a party to such action.”

Defendant Abinante argues that the Complaint simply alleges an internal corporate governance dispute and does not allege fraudulent or dishonest conduct or gross abuse of authority on the part of Abinante.

Plaintiff argues that sufficient facts are alleged to meet the threshold requirements of Corporations Code section 304, and also argues that directors can be removed under general equity principles where directors breach their fiduciary duties.

The court finds that the Complaint sufficiently alleges factual conduct that, if true, may constitute gross abuse of authority with respect to Ascada, such as unilaterally removing Plaintiff as director and officer, opening an unauthorized bank account without board approval and engaging in self-dealing. (Compl., ¶¶ 36-65.)

As such, the demurrer to the seventh cause of action is OVERRULED.

9th C/A (violation of Penal Code § 496)

Penal Code section 496 provides,

“(a) 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 by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. ... (c) Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.”

The elements of this cause of action are: “(1) that the particular property was stolen, (2) that the accused received, concealed or withheld it from the owner thereof, and (3) that the accused knew that the property was stolen. (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 213.) A violation of the statute requires some form of criminal intent. (See Siry Investment LP v. Farkenhondehpour (2022) 13 Cal.5th 333, 361-362 [discussing the criminal intent requirement under Penal Code section 496 and contrasting violations of the statute to “ordinary commercial defaults” caused innocently or inadvertently].)

With respect to this cause of action, the Complaint alleges the following: “between March 2024 and 2025, Plaintiff’s fair shares of profits and/or money from Defendant Ascada were stolen or ... Defendant Abinante obtained them in a manner constituting theft, including siphoning money.” (Compl., ¶ 117.) Taken together with the other allegations in the Complaint, the court finds Plaintiff sufficiently pleads a cause of action for violation of Penal Code section 496.

As such, the demurrer to the ninth cause of action is OVERRULED.

Re Uncertainty Demurrer:

In addition to a general demurrer (i.e., failure to state facts sufficient to constitute a cause of action –Code Civ. Proc., §

430.10(e)), Abinante purports to also demur on the ground of uncertainty (Code Civ. Proc., § 430.10(f)).

Abinante however fails to show that any cause of action is uncertain. Indeed, other than conclusory statements that “Plaintiff’s allegations are deficient, uncertain, ambiguous”, Abinante does not address how any particular cause of action is uncertain.

Further, a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal. 2d 872, 883.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v.

Cariss (1990) 224 Cal. App. 3d 905, 908.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300).)

As such, Abinante’s uncertainty demurrer is OVERRULED in its entirety.

Moving Defendant to give notice.

2. Motion to Strike

The court DENIES Defendant MATTHEW ABINANTE’s (“Abinante”) motion to strike certain portions of the Complaint filed by Plaintiff KEVIN OEI.

Rule 3.1322(a) of the California Rules of Court states, “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except

where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.”

Here, according to the Notice of Motion, Abinante seeks to strike the following portions from the Complaint:

Paragraphs 66 (references to ‘personal bank accounts’), 67 (references to ‘accounts under Defendant’s personal Control’), 70 (references to inspection of Defendant’s personal financial accounts), 95 (incorporation of the above allegations into the accounting claim), 117–119 (theft / Penal Code §496 allegations), 120 (punitive damages allegations), and the Prayer for Relief where it seeks treble damages under Penal Code § 496, punitive or exemplary damages, and an accounting of Defendant’s personal financial accounts.” (Not. Of Motion at p. 2, lines 12-18.)

But most of the identified paragraphs do not relate to the references made for those paragraphs. For example, Paragraph 66 does not reference any “personal bank accounts”; Paragraph 67 does not reference “accounts under Defendant’s personal control”; Paragraph 70 does not reference any inspection of Defendant’s personal financial accounts; and Paragraph 95 does not relate to any incorporation of ally allegations into the accounting claim.

And except for Paragraph 120, the Notice of Motion does not meet Rule 3.1322’s requirement for identifying an entire paragraph sought to be stricken or quoting the portion sought to be stricken.

Moreover, there is no apparent basis for striking allegations in paragraphs 117-119 related to the ninth cause of action for violation of Penal Code section 496. As stated in the analysis above for the demurrer, sufficient facts are alleged to state the cause of action.

As for Paragraph 120 (re punitive/exemplary damages allegations), the Complaint contains sufficient factual allegations to support a claim for punitive/exemplary damages against Abinante. (See Civ. Code, § 3294(c) [authorizing punitive damages when a defendant acts with

malice, oppression, or fraud, and defining such terms.) For example, the Complaint alleges that Abinante engaged in self-dealing against a business parter by, among other things, stealing or siphoning money from the business at Plaintiff’s detriment.

In sum, the motion to strike is DENIED in its entirety.

Moving Defendant to give notice.

12 Salaiz vs. Ford Motion for Judgment on the Pleadings Motor Company The court GRANTS Defendant FORD MOTOR COMPANY’s (“Ford”) motion for judgment on the pleadings as to the sixth cause of action for fraudulent inducement – with 20 days’ leave to amend.

As an initial matter, the court notes Ford did not satisfy Code of Civil Procedure section 439(a), which requires the parties to meet and confer in person, by telephone, or by video conference before filing a motion for judgment on the pleadings. (See Park Decl., ¶¶ 2-4.) Despite this deficiency, the court exercises its discretion to reach the merits of the motion at this time.

6th C/A (fraudulent inducement – concealment)

The elements of a cause of action for fraudulent concealment are: (i) concealment or suppression of a material fact; (ii) by a defendant with a duty to disclose the fact to the plaintiff; (iii) defendant’s intent to defraud plaintiff by intentionally concealing or suppressing the fact; (iv) plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (v) as a result, the plaintiff sustained damage. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162; see also Civ. Code, § 1573.)

“A duty to disclose a material fact can arise if (1) it is imposed by statute; (2) the defendant is acting as plaintiff's

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