PELORUS vs ARGENT

For the reasons set forth below, the CNG Defendants’ motion and Argent’s joinder are DENIED. Pelorus’s objection to Exhibit H, I, and J to the first declaration of J. Roy Pottle (the receiver’s motion for instructions and supporting declarations) is OVERRULED. The Court declines to rule on Pelorus’s remaining objections because the evidence objected to is immaterial to the Court’s ruling.

GROUNDS FOR RULING

I. Summary of Allegations of Complaint

This action arises from a series of loans made by both Pelorus and the CNG Defendants to a group of non-party cannabis businesses collectively referred to as “StateHouse.” The CNG Defendants loaned money to StateHouse pursuant to an amended master debenture agreement that designated Aquicom Agency Services, LLC as the collateral and administrative agent for the CNG Defendants. Argent is the successor-in-interest to Aquicom and now serves as the CNG Defendants’ agent.

Pelorus made four separate loans to StateHouse. As a condition of entering into these loans, Pelorus required the CNG Defendants and Argent to enter into an intercreditor agreement that allegedly gave Pelorus first-priority liens on all StateHouse collateral except “Subordinate Lender Senior Collateral,” as defined. The intercreditor agreement also allegedly required the CNG Defendants (or Argent, as their collateral agent) to obtain Pelorus’s approval before seeking additional collateral, perfecting security interests through a UCC filing, etc. In addition, the CNG Defendants/Argent’s UCC filings were allegedly required to reference the intercreditor agreement.

StateHouse eventually defaulted on Perlorus’s loans. In September 2024, Pelorus (represented by mostly the same counsel as here, albeit at a prior firm) filed a receivership action in San Diego County Superior Court, Pelorus Fund REIT, LLC v. StateHouse Holdings, Inc., No. 24CU013061C (the “Receivership Action”). A receiver was appointed in October 2024. The San Diego court has ordered the sale of the receivership assets.

Pelorus alleges that a series of actions going back to April 2022—shortly after the intercreditor agreement was executed—show Argent and the CNG Defendants never intended to be bound by the terms of the intercreditor agreement. Briefly:

• The CNG Defendants have claimed a senior interest in the regulatory licenses held by certain StateHouse entities, either directly in the licenses or indirectly by claiming a senior interest in the shares of those entities, even though Pelorus is to have senior interests in the licenses.

• From April 2022 to May 2025, the CNG Defendants, through Argent, filed over 30 UCC filings without giving Pelorus prior notice, obtaining Pelorus’s prior consent, or referencing the intercreditor agreement in the filings.

• The CNG Defendants arranged for $7 million in funds that would otherwise be subject to the Receivership Action to be transferred to non-moving defendant LPF Holdco, which isn’t part of the Receivership Action. This transfer removed funds StateHouse would otherwise be required to use to reimburse Pelorus for advancing the fees and costs of the receivership.

• On multiple occasions in 2026, the CNG Defendants refused to provide straight answers identifying the property they claim senior interests in and the specific documents that give the CNG Defendants senior interests.

Pelorus filed the present lawsuit in April 2026. It brings claims for breach of contract, breach of the implied covenant, fraud, negligent misrepresentation, and declaratory relief. The CNG Defendants have filed an anti-SLAPP motion seeking to strike all five causes of action. Argent has joined in the motion. As set forth in its notice of motion, CNG contends that all of Pelorus’s claims stem from statements made in the Receivership Action: “The anti-SLAPP statute applies to each of Pelorus’ causes of action in this lawsuit because they arise from statements made in, or in connection with, a judicial proceeding or the issues considered therein.” (ROA 44)

II. Governing Law

Section 425.16 of the Code of Civil Procedure provides for special motions to strike, or anti-SLAPP motions, which allow a party to challenge claims (or entire complaints) that arise from protected activity. “Resolution of an anti- SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (citations omitted).)

As to step one, the statute defines the following as protected activity: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (CCP § 425.16(e).)

The California Supreme Court has explained, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v.

Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060 (emphasis original).) At step one, “[i]n addition to the pleadings, [a court] may consider affidavits concerning the facts upon which liability is based. [Citation.] [A court] do[es] not, however, weigh the evidence, but accept[s] plaintiff’s submissions as true and consider[s] only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law.” (Id., at p. 1067.)

As to step two, the California Supreme Court has explained, “[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’” (Baral, supra, 1

Cal.5th at pp. 384-385.)

III. Step One Analysis

A. Breach of Contract (1st Cause of Action)

Pelorus’s general allegations regarding the CNG Defendants’ and Argent’s alleged wrongful acts are summarized above. However, at paragraph 143 of the complaint, Pelorus alleges five specific wrongful acts that are the basis of its contract claim. Significantly, it contends that “All of Pelorus’s claims arise from actions that CNG has taken as part of the Receivership Action.” (ROA 44, p. 16)

First, Defendants allegedly attempted to take control of Pelorus’s senior secured collateral, presumably meaning the regulatory licenses and the like. Defendants’ anti-SLAPP motion contends this is a reference to the Receivership Action, but this is hardly clear from the face of the complaint. To the contrary, the exhibits to the complaint include numerous all-asset UCC financing statements going back to 2022, only some of which state that the claimed security interests are junior to Pelorus’s.

This supports the inference that when a statement fails to mention Pelorus, Defendants claim an interest senior to Pelorus’s. Furthermore, Pelorus strenuously denies in its papers that any of its claims arise from statements made in the course of the Receivership Action. As noted above, the Court must accept Pelorus’s submissions as true and consider only whether, as a matter of law, Defendants’ evidence shows the claims nevertheless arise from protected activity.

Second, Defendants allegedly improperly claimed to have nonexistent or unenforceable security interests that interfered with Pelorus’s senior rights. Again, Defendants contend this is a reference to claims made in the Receivership Action. But the UCC statements could reasonably be read to claim nonexistent or unenforceable interests (to the extent they claim to be superior to Pelorus’s), and again, Pelorus strenuously denies that its claims arise from any statements made in the Receivership Action.

Third, Defendants allegedly filed UCC financing statements in violation of the terms of the intercreditor agreement. On their face, these filings have nothing to do with protected activity. Unless an exception applies, “a financing statement must be filed to perfect all security interests.” (4 Witkin, Summary of Cal. Law (11th ed. 2026) Secured Transactions in Personal Property § 60.) UCC filings are generally made to protect security interests, not in furtherance of the rights of petition or free speech. Defendants put on no evidence that these filings weren’t made in the regular course of business rather than in connection with the Receivership Action. (Moreover, to the extent the UCC filings predate the Receivership Action, the Court questions whether they could be said to relate to the Receivership Action at all.)

Fourth, Defendants allegedly refused to recognize Pelorus’ senior status on collateral. Though unclear, this presumably refers to the occasions in 2026 when Defendants failed to provide straight answers about the property over which they claimed senior status. As noted above, it is Defendants’ burden to prove these communications were made in the Receivership Action or in

connection with the Receivership Action. The Court would have expected Defendants to enter the communications themselves into evidence—if they referred to the Receivership Action, they would be protected. From the Court’s review, however, neither Pelorus’s requests nor Defendants’ responses are in the record. The Court is thus left to accept as true Pelorus’s submission that these communications are unrelated to the Receivership Action.

Fifth, Defendants allegedly took action against Pelorus’s senior collateral. Presumably, this means the transfer of $7 million in funds from other StateHouse entities to LPF Holdco. Pelorus submits evidence that this transfer occurred before the Receivership Action was filed. (Bournazian Decl. (ROA 93) ¶ 12.) Defendants put on no evidence to the contrary. The Court is therefore left to conclude that the transfer of funds is unrelated to the Receivership Action. The Court also questions whether the transfer of funds is an “oral or written statement” that would qualify for anti-SLAPP protection in the first place.

As a result, the Court concludes the contract claim doesn’t arise from protected activity.

B. Breach of the Implied Covenant (2nd Cause of Action)

The implied covenant claim is based on three sets of allegations. First is Defendants’ attempt to claim a senior security interest in, and to market, the StateHouse regulatory licenses. (Compl. ¶¶ 157-160.) For the reasons discussed above in Part III.A, it is hardly clear from the face of the complaint that this is protected activity rather than attempts to perfect security interests in the ordinary course of business.

Second is Defendants’ filing of an all-asset UCC statement in May 2025, after the Receivership Action had been filed. Again, this appears to simply be an attempt to perfect claimed security interests in the ordinary course of business. Defendants put on no evidence that this filing has any connection to the Receivership Action.

Third is Defendants’ alleged transfer of $7 million from other StateHouse entities to LFP Holdco. As discussed above, the only evidence before the Court is that this transfer occurred before the Receivership Action was filed. There is no evidence that the transfer was made in connection with the Receivership Action, and the Court questions whether the transfer of funds is entitled to anti-SLAPP protection.

As a result, the Court concludes the implied covenant claim doesn’t arise from protected activity.

C. Misrepresentation (3rd and 4th Causes of Action)

Pelorus’s third cause of action is for fraudulent inducement or fraud, and its fourth is for negligent misrepresentation. Both causes of action are based on

the allegation that when the CNG Defendants and Argent entered into the intercreditor agreement, they did so without any intent to perform as required by the agreement. This, in turn, induced Pelorus to enter into an agreement it would otherwise have avoided, had it known the CNG Defendant and Argent had no intent to perform.

These causes of action sound in promissory fraud. “‘Promissory fraud’ is a subspecies of an action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The California Supreme Court has recognized that “fraudulent intent must often be established by circumstantial evidence.” (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 (internal quotation omitted).) The wrongful act in such cases is the false promise to perform.

The acts discussed in more detail above are not the wrongful acts complained of with respect to these two claims. Rather, they are evidence of the CNG Defendants’ and Argent’s lack of intent to perform under the intercreditor agreement. Here, the allegedly wrongful act was entering into the intercreditor agreement without the intent to perform, thereby inducing Pelorus to enter into the intercreditor agreement. This act was not protected.

As a result, the Court concludes the misrepresentation claims don’t arise from protected activity.

D. Declaratory Relief (5th Cause of Action)

It appears to the Court that the declaratory relief claim is derivative of the others. Therefore, the Court concludes it doesn’t arise from protected activity.

IV. Further Comments

The CNG Defendants’ motion and Argent’s joinder are denied because these parties fail to meet their step one burden. At step one of the anti-SLAPP analysis, a court determines only whether a plaintiff’s claims arise from protected activity. The merits are not a proper consideration. As a result, the Court expresses no opinion on the merits of Pelorus’s claims.

That said, it appears to the Court that Pelorus’s lawsuit arguably amounts to forum-shopping. The record reflects that on or about April 10, 2026, counsel for the receiver sent Pelorus a letter disagreeing with the interpretation of the intercreditor agreement set forth in Pelorus’s complaint. On April 20, Pelorus filed this action, seeking, inter alia, a declaration regarding lien priorities under the intercreditor agreement. The receiver represented to the San Diego court that Pelorus filed this action without notifying him first. The

receiver then filed a motion for instructions in the Receivership Action. That motion for instructions also seeks a determination of lien priorities under the intercreditor agreement.

Under the order appointing the receiver in the Receivership Action, the receiver has full possession of all assets of the StateHouse Entities. (See Bournazian Decl., Ex. 34, at Order ¶¶ 7, 10.) The receiver is also charged with disposing of those assets to repay secured creditors. (Id. ¶ 17.) The repayment of secured creditors necessarily involves the resolution of competing claims to lien priority.

Therefore, while the Court has denied the special motion to strike, it would be willing to entertain a motion to stay this case until the Receivership Action is resolved. Without prejudging the merits of such a motion, the Court notes that allowing the San Diego court to resolve competing claims to property already in the possession of the receiver would appear to promote judicial economy.

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