Demurrer; Motion to Strike
# Case Name Tentative
Based on the court’s ruling on the ACI defendants’ motion to strike, ACIOC’s motion to strike the 3rd cause of action is DENIED as moot.
ACIOC’s demurrer to the Fifth Amended Complaint is DENIED as moot, as the challenged causes of action have been stricken.
ACIOC shall give notice of this ruling.
54. G&D Defendant Green Zahn and Associates’ Demurrer to the First Scarbrough Amended Complaint (“FAC”) is SUSTAINED. Family Defendant demurrers to the second through fifth causes of Limited action of the FAC. Partnership, LLP v. Green Second and Third Causes of Action – Breach of Fiduciary Zahn and Duty and Constructive Fraud Associates “The elements of a cause of action for breach of fiduciary duty 2025- are the existence of a fiduciary relationship, its breach and 01507294 damage proximately caused by that breach.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395.)
The elements for a claim of constructive fraud are “(1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive; and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.)
Both causes of action are based on Plaintiff’s allegation that Defendant was a fiduciary of the G&D Scarbrough Family Limited Partnership (“G&D”).
The FAC now alleges that Green Zahn and Associates’ (“GZA”) signature on the returns constituted an agreement to represent G&D as an agent before the IRS such that there was an agency relationship. But there is no allegation that GZA represented G&D before the IRS, and Plaintiff does not explain how Defendant’s agreement to prepare and file its tax returns obligates Defendant to represent it before the IRS.
Moreover, Plaintiff’s claims against Defendant do not arise out of any representation of it before the IRS. Thus, any limited agency that might have existed between the parties is not relevant to the claims asserted herein.
“[B]reach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
# Case Name Tentative
accounting and tax services to Plaintiff related to the sale of the subject properties. This does not give rise to a fiduciary duty. The FAC does not allege that Defendant was engaged to provide tax-planning advice, estate advice, transactional counsel, or discretionary financial oversight. Defendant was not entrusted with Plaintiff’s property and Defendant is only alleged to have negligently performed services.
Further, there are no allegations with respect to the third cause of action that Defendant intended to deceive Plaintiff.
Accordingly the demurrer to the second and third causes of action is SUSTAINED.
Fourth and Fifth Causes of Action – Intentional Misrepresentation and Negligent Misrepresentation
“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.)
The elements of a claim for negligent misrepresentation are “(1) a false statement of a material fact that the defendant honestly believes to be true, but made without reasonable grounds for such belief, (2) made with the intent to induce reliance, (3) reasonable reliance on the statement, and (4) damages.” (Century Sur. Co. v. Crosby Ins., Inc. (2004) 124 Cal.App.4th 116, 129.)
Both negligent and intentional misrepresentation must be alleged with particularity. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028 [“For policy reasons, some causes of action, such as fraud and negligent misrepresentation, must be pleaded with particularity...”].)
As with the prior Complaint, all that is alleged in the FAC is that Defendant lacked the ability and skill to perform the services agreed to. The FAC does not allege any facts that Defendant knew any representations it made were false or were made without reasonable grounds for believing them to be true. A conclusory statement that Defendant represented they had “specialized accounting knowledge and expertise to handle the FLP accounts,” without more, does not amount to fraud.
Accordingly, the demurrer to the fourth and fifth causes of action is SUSTAINED.
# Case Name Tentative
The demurrer is SUSTAINED without leave to amend as the Court has previously sustained the demurrers to the original complaint on the same grounds. Plaintiff has failed to cure the defects, and plaintiff has not articulated a plausible way for it to plead these claims successfully.
MOTION TO STRIKE
Defendant Green Zahn and Associates’ Motion to Strike Certain Portions of the First Amended Complaint is MOOT in light of the Court’s ruling on Defendant’s demurrer to the second cause of action.
Defendant shall file an answer within 10 days.
The case management conference is continued to December 7, 2026 at 9:00 a.m. in Department C28.
Defendant shall give notice of this ruling.
55.
56. Leiva Lemus Defendants Ruben Brito, Anabel De Brito, Floriberto Brito v. Brito Alonzo, Maria Del Carmen Norato De Brito and Randi Brito’s Alonzo motion to set aside the March 9, 2026 order striking their answers to the complaint is GRANTED. 2024- 01384391 Plaintiff’s request for judicial notice is GRANTED.
Defendants claim the order striking their answer arose due to “excusable neglect” in that they failed to timely update their addresses with the court and thus had no notice of (or opportunity to respond to) the subject motion to strike. They further argue that plaintiff failed to comply with the meet and confer obligations prior to filing the motion to strike, which also provides grounds for excusable neglect.
Under California Code of Civil Procedure section 473(b), a court may relieve a party from an order taken against the party through the party's mistake, inadvertence, surprise, or excusable neglect, provided the application is made within a reasonable time not exceeding six months. Courts have recognized that discretion should generally be exercised in favor of allowing parties to defend on the merits where possible. Early case law established that any doubt as to the propriety of setting aside a default should be resolved in favor of the application, and that courts should exercise discretion to promote substantial justice. Bank of Haywards v. Kenyon (1917) 32 Cal.App.635.