Neumann vs. Mull

existing statutes or case law.’” (Id. at 1484 [emphasis in original, internal citations omitted]).

Regarding uncertainty, the court will only sustain a demurrer for uncertainty if it is so poorly drafted that defendants cannot reasonably respond. (Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616.).

Here, Plaintiff failed to plead any facts supporting the cause of action for motor vehicle. In the Judicial Council Form Complaint, PLD-PI- 001, paragraph 10 states: “The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached).” Plaintiff did not provide any attachment and there are no other facts alleged in the complaint. Accordingly, Plaintiff failed to plead any ultimate facts in support of his claim.

Furthermore, Plaintiff failed to oppose. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue”.]).

Accordingly, the demurrer is sustained.

Should Plaintiff desire to file an amended complaint, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.

Defendant shall give notice.

2 Neumann vs. TENTATIVE RULING: Mull Before the court are the following demurrers/motions:

• Demurrer by Defendant JM Welding Products, LLC to the third amended complaint (the “LLC Defendant’s Demurrer”) • Demurrer by Defendants Andrew Burke, Thomas Bruno, Sara Abrams, and James Mull to the third amended complaint (the “Individual Defendants’ Demurrer”) • Motion to Strike by Defendant JM Welding Products, LLC to the third amended complaint (the “LLC Defendant’s Motion to Strike”) and

• Plaintiff’s Omnibus Motion to Strike: (1) LLC’s Motion to Strike, (2) LLC’s Demurrer, and (3) Individual Defendants’ Joint Demurrer

For the reasons set forth below:

Defendant JM Welding Products, LLC’s demurrer to the third amended complaint by Plaintiff Richard Warren Neumann Jr., is OVERRULED;

Defendants Andrew Burke’s, Thomas Bruno’s, Sara Abrams’, and James Mull’s demurrer to the third amended complaint by Plaintiff Richard Warren Neumann Jr., is SUSTAINED with 30 days leave to amend;

Defendants Andrew Burke’s, Thomas Bruno’s, Sara Abrams’, and James Mull’s request for judicial notice is GRANTED as to Exhibits A-F;

Defendant JM Welding Products, LLC’s motion to strike portions of the third amended complaint by Plaintiff Richard Warren Neumann Jr., is DENIED; and

Plaintiff’s Omnibus Motion to Strike: (1) LLC’s Motion to Strike, (2) LLC’s Demurrer, and (3) Individual Defendants’ Joint Demurrer is DENIED.

LLC Defendant’s and Individual Defendants’ Demurrer

A. Legal Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) A demurrer tests only the sufficiency of the complaint; a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)

Although courts should take a liberal view of inartfully drawn complaints (see Code Civ. Prod., § 452), it remains essential that a

complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

B. First Cause of Action for Breach of Contract

1. LLC Defendant’s Demurrer

“To state a cause of action for breach of contract, it is required that there be a pleading of the contract, plaintiffs’ performance (or excuse for nonperformance), defendant's breach, and damage to plaintiff therefrom.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.) Furthermore, in an action founded upon a contract, a party must be able to ascertain from the pleading whether the contract was written, oral, or implied by conduct. (Code Civ. Proc. § 430.10(g).)

The LLC Defendant demurs to the first cause of action on the grounds that Plaintiff references multiple contracts, such that Defendant does not know what contract was allegedly breached. As such, it cannot be ascertained whether the contract is written, oral, or implied by conduct.

The court disagrees. The first cause of action specifically identifies the contract that was allegedly breached as an oral contract between Plaintiff and the LLC Defendants. (TAC, ¶ 60 & 62). Plaintiff’s references to the other agreements provide context to Plaintiff’s claims and Plaintiff expressly alleges that those other agreements were either never executed, executed under fraud/duress, and/or are not enforceable and disavows any purported written agreement between the parties as forged/void. Here, Plaintiff has sufficiently alleged the ultimate facts for each cause of action for breach of contract against Defendants. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606 [“A cardinal rule of pleading is that only the ultimate facts need be alleged.”].) As such, the first cause of action is sufficiently pled.

The LLC Defendant’s demurrer to the first cause of action is overruled.

2. Individual Defendants’ Demurrer

The Individual Defendants also demurrer to the first cause of action due to lack of sufficient pleading.

The court agrees with the Individual Defendants’ arguments as it pertains to Defendant Sara Abrams, Tommy Bruno, and Andrew Burke. The TAC alleges that the oral agreement was entered in August 2020 with Defendant James Dean Mull, as sole owner of the LLC. (TAC, ¶ 11). The TAC specifically alleges that “Sara Abrams, Tommy Bruno, and Andrew Burke were not yet associated with the LLC...” and that the products designed “were sold by JM Welding Products,” not by Abrams, Bruno, or Burke. (TAC, ¶ 11). The first cause of action only identifies, and seeks relief only for, the breach of this oral agreement. (TAC, ¶ 60).

As such, the existence of any agreement with Abrams, Bruno, or Burke under which Plaintiff is asserting a breach of contract claim is uncertain.

As to Defendant Mull, however, the court finds that the existence of an oral agreement between Mull is alleged and that a cause of action for breach of contract is sufficiently pled against Mull.

The Individual Defendants also demur under section 474 on the grounds that Plaintiff was aware of the individual defendants’ names before the complaint was filed in July 2023.

As relevant here, Code Civ. Proc. § 474 provides:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; .... the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. ...

The court in Woo went on to state:

Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe

defendant named in the original complaint. [citation] Here Zarabi made no apparent attempt to satisfy this procedural requirement. The amended complaint adds Woo as a defendant but does not identify him as a substitute for a previously named fictitious defendant. Furthermore, the summons served on Woo identifies him as being sued as an individual defendant, not as a defendant previously sued under a fictitious name.

(Woo, supra, 75 Cal.App.4th at 176. [emphasis added]).

The court also held: “A further and non-procedural requirement for application of the section 474 relation-back doctrine is that Zarabi must have been genuinely ignorant of Woo's identity at the time she filed her original complaint. ..., if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay.” (Id. at 177).

Pursuant to the holding in Woo, supra, the relation back doctrine would not apply here. In the first amended complaint, of which the court takes judicial notice, Plaintiff specifically alleges that Plaintiff knew of the involvement of Sara Abrams, Tommy Bruno, Andrew Burke, and James Mull between August 2020 and May 2021. (FAC, ¶ FAC- GAAE.13). When Plaintiff filed the third amended complaint, however, none of the individual defendants were named defendants, but were added in as Does under section 474. However, it cannot be said that Plaintiff was ignorant of the identities at the time that Plaintiff filed the complaint and any of the subsequent amended complaints. As such, there is no basis for the relation back doctrine to apply.

Because Plaintiff does not sufficiently allege an agreement with Sara Abrams, Tommy Bruno, and Andrew Burke, and because Plaintiff does not sufficiently pled that the causes of action are not barred by the statute of limitations given that the relation back doctrine does not apply, as pled, and the third amended complaint was filed on December 29, 2025, the demurrer by the Individual Defendants is sustained with 30 days leave to amend.

C. Second Cause of Action for Fraud

1. LLC Defendant Demurrer

"A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded.

[citations omitted]" (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.)

“’Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, quoting Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” Stansfield v. Starkey, supra, 220 Cal.App.3d at p. 73, quoting Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707.)

The LLC Defendant argues that Plaintiff has not plead fraud with the requisite specificity. The court disagrees. The TAC specifically alleges that the LLC Defendant agreed in an oral agreement to give Plaintiff 25% ownership interest through its sole owner Mull in August 2020, that Plaintiff reasonably relied on that promise, and that Plaintiff was induced into providing services and labor to create a product with proprietary data that belonged to Plaintiff, that Defendant took that proprietary data, but never gave Plaintiff a 25% interest as promised. (TAC, ¶ 65-69). These allegations are specific and sufficient enough to put the LLC Defendant on notice of Plaintiff’s fraud claims.

The demurrer by the LLC Defendant is overruled as to the second cause of action.

2. Individual Defendants’ Demurrer

For the same reasons set forth above (e.g., the failure to allege a sufficient agreement and statute of limitation issues due to section 474), the demurrer by the Individual Defendants to the second cause of action for fraud is sustained with 30 days leave to amend.

LLC Defendant and Plaintiffs’ Motions to Strike

A. Legal Standard for Motion to Strike

The grounds for a motion to strike must appear on the face of the pleading or matters from which the court may judicially notice. (Code Civ. Proc., § 437.) Pursuant to Code of Civil Procedure Section 436 the court may, upon a motion made or at any time in its discretion, strike out “any irrelevant, false, or improper matter inserted in any pleading.”

In a motion to strike, the court reads the complaint as a whole, considering all parts in their context, and must assume the truth of all well-pleaded allegations. (Courtesy Ambulance Serv. v. Superior Court (1992) 8 Cal.App.4th 1504, 1519.)

B. LLC Defendant’s Motion to Strike

The LLC Defendant first moves to strike exhibits that are not attached to the complaint. The LLC Defendant argues that these exhibits should be stricken because they are not properly authenticated. Exhibits to a complaint, however, provide context to allegations and are not, in and of themselves admissible. The court denies this request.

The LLC Defendant then moves to strike allegations relating to patent fraud and misappropriation of technology. While Plaintiff is not asserting a cause of action for patent fraud or misappropriation of technology, these allegations provide context as to the parties’ relationship and Plaintiff’s fraud claim. The court denies the motion to strike as to this request.

The LLC Defendant then moves to strike allegations relating to punitive damages. To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a).) As the court found above, Plaintiff has sufficiently alleged a cause of action for fraud against the LLC Defendant such that punitive damages are available as a remedy. The court denies the motion as to this request.

Finally, the LLC Defendant moves to strike Plaintiff’s request for a permanent injunction because the LLC Defendant believes that Plaintiff’s fraud claim lacks merit. The merits of Plaintiff’s claims, however, have not yet been adjudicated such that the type of relief Plaintiff is entitled to has not yet been adjudicated. A permanent injunction is an available remedy for breach of contract and/or fraud. The motion to strike as to this request is denied.

C. Plaintiff’s Motions to Strike

Plaintiff moves to strike the LLC Defendant’s Demurrer, the LLC Defendant’s Motion to Strike, and the Individual Defendants’ Joint Demurrer. The court does not find that these filings are irrelevant, false, or improper. The court does not agree that any of these filings are void, procedurally improper, untimely, or sham pleadings.

Plaintiff’s motions to strike are denied.