Joshua Gil v. Jordan Bernstein

(Stanley Mosk Courthouse: Dept. 509) August 19, 2026 DEPARTMENT 509 LAW AND MOTION RULINGS

(1) DEMURRER TO FIRST AMENDED COMPLAINT (2) MOTION TO STRIKE MOVING PARTY: Defendant Jordan Bernstein RESPONDING PARTY(S): Plaintiff Nellie Gil, successor in interest of Joshua Gil STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiff Joshua Gil (Plaintiff) entered into a partnership with third-party Matthew Egan. An arbitration proceeding determined that Egan breached the partnership agreement by creating derivative entities to expand personal interests at the expense of the partnership. Plaintiff now brings this action against defendant Jordan Bernstein (Defendant) alleging Defendant engaged in fraud by materially misrepresenting himself as an attorney for the partnership when Defendant knew Egan intended to dispute the partnership.

Plaintiff brings cause of actions of action for: (1) fraudulent mispresentation and concealment; and (2) negligent misrepresentation. On July 1, 2026, the Court appointed Nellie Gil as the successor in interest on behalf of Joshua Gil, decedent. Defendant demurs to the entirety of the first amended complaint (FAC) and moves to strike punitive damages alleged within. Plaintiff opposed. On August 10, 2026, the parties stipulated to move this hearing date to August 19, 2026, the date of the Case Management Conference.

TENTATIVE RULING: Defendant's Demurrer is OVERRULED IN ITS ENTIRETY. Defendant's Motion to Strike is GRANTED IN PART. Defendant is ordered to file an answer to the FAC within 21 days of this ruling. Plaintiff is ordered to give notice, unless waived.

DISCUSSION: Demurrer to First Amended Complaint I. Meet and Confer The Declaration of attorney Jacob J. Caplan reflects that the meet and confer requirement was satisfied. II.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Pro. Sec. 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v.

Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, at p. 747.) "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Serrano v. Priest (1971) 5 Cal.App.3d 584, 591.)

A "demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law." (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

III.

Analysis

Plaintiff brings cause of actions of action for: (1) fraudulent mispresentation and concealment; and (2) negligent misrepresentation. Both causes of action involve nearly identical facts which Defendant demurs to on identical grounds. Defendant argues that the FAC fails as Plaintiff does sufficiently alleges facts to establish fraud. Specifically, "[t]he FAC's allegations against Defendant are deficient because they are not sufficiently particularized, and those portions which do make specific factual allegations fail to satisfy the elements of either fraud or fraudulent concealment." (Mot. at p. 6:22-24.)

The elements of fraud 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." (Charnay¿v.¿Cobert¿(2006) 145 Cal.App.4th 170, 184.)¿In California, fraud, including negligent misrepresentation, must be pled¿with specificity. (Small v. Fritz Companies, Inc.¿(2003) 30 Cal.4th 167, 184.) "The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered." (Cansino¿v.

Bank of America¿(2014) 224 Cal.App.4th 1462, 1469.)

Both causes of action rely upon the same allegations: Between in or about 2022 and November 2024, BERNSTEIN, without limitation, (1) falsely represented to GIL that he was the attorney for Hola Comida I LP; (2) falsely represented to GIL that GIL was an undisputed partner of Hola Comida I LP; (3) falsely represented to GIL that he negotiated with third parties on behalf of and for the benefit of Hola Comida I LP; (4) false represented to GIL that he negotiated with third parties on behalf of and for the benefit of GIL; (5) falsely represented to GIL that GIL's granting of a license to use his personal name and likeness and the intellectual property of Hola Comida I LP to HCH was for the undisputed benefit of GIL as a partner to Hola Comida I LP; and (5) falsely represent to GIL that GIL's signing of the MRA was for the benefit of GIL as an undisputed partner of Hola Comida I LP. (FAC P.34.) "BERNSTEIN made these representations to induce GIL to sign certain documents. BERNSTEIN did so for the benefit of BERNSTEIN, including, on information and belief, BERNSTEIN's individual interest in receiving an ownership stake in EGAN's future endeavors, or other consideration." (FAC P.35.) "GIL justifiably relied on those representations." (FAC P.36.)

Plaintiff provides specific occurrences: BERNSTEIN transmitted two written communications to GIL that, under the circumstances, were fraudulent: An email transmittal of a License Agreement by BERNSTEIN to GIL in or about June 2022 to obtain GIL's signature under the false representation that BERNSTEIN represented GIL's interests as a partner to "Hola Comida"; and the email transmittal of a Membership Redemption Agreement to obtain GIL's signature on or about December 13, 2023, wherein BERNSTEIN represented to GIL that BERNSTEIN represented GIL's interests as a partner to "Hola Comida".

In addition, in or about June 2022, BERNSTEIN drafted the License Agreement. At the time he drafted these documents, BERNSTEIN knew their purpose was to further EGAN's breach of duty and contract with GIL by extracting value from Hola Comida I LP without consideration, and circumventing the partnership for purposes of the expansions built on the license. BERNSTEIN also knew he represented only EGAN in connection with these transactions. Despite the plain breach of duty and contract accomplished by these actions, BERNSTEIN was paid for it directly from the Hola Comida I LP's own bank account.

BERNSTEIN committed direct fraud through direct misrepresentations to GIL. That is, in or about June 2022, BERNSTEIN represented to GIL in writing that he was the counsel for the "Hola Comida" entities without disclosing the "Hola Comida" entities were wholly owned at the time by EGAN and created purely for the purpose of circumventing GIL's interest in the partnership. With that misrepresentation made, BERNSTEIN also sent the License Agreement to GIL for signature. GIL signed the agreement, not knowing that BERNSTEIN did not represent GIL, the partnership, or GIL's partnership's interests, and instead represented solely EGAN's interest, and that GIL's signature would provide the mechanism by which HCH, HCII, HCIII, HCIV, and HCM (the "Hola Comida" entities) would claim the right to use the partnership assets and GIL's personal name, likeness, and skill, for their own benefit to the exclusion of the partnership.

BERNSTEIN, however, did know all these facts, having reviewed the LP Agreement and creating the operating agreements and License Agreement specifically to circumvent the partnership. ... BERNSTEIN sent an email to GIL, and only GIL, for GIL's signature with the representation that "all parties have signed off in principle" the MRA and directing GIL to "Please sign". BERNSTEIN knew at the time of making this representation (having negotiated and drafted the MRA's terms) that GIL was a party to the MRA (both as an individual and putative partner for Hola Comida I LP) and that GIL had not "signed off in principle" the MRA; however, BERNSTEIN knew that GIL did and would believe understand BERNSTEIN's statement to mean GIL, as a "party" to the MRA, "signed off in principle" through BERNSTEIN, EGAN, and the partnership's negotiations, which BERNSTEIN knew to be false given he served solely EGAN's interests as EGAN's attorney. (FAC P.P.10-14.)

In reviewing the totality of the allegations presented in the FAC, Plaintiff has alleged all elements of fraud and has done so with the specificity required at the pleading stage. It is also worth noting that the facts of the dispute are likely to be within the knowledge of Defendant. (Comm. On Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 217, ["Less specificity is required when 'it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.'"]) Further, it appears that Defendant seeks a level of granularity impractical for pleading purposes.

For example, Defendant argues that "[d]espite the inclusion of a quotation from an allegedly fraudulent email, the FAC notably excludes the portion of the communication that Plaintiff alleges is fraudulent." (Mot at p. 5:13-15.) Indeed, these sorts of "ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Instead, the "particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered." (Cansino¿v.

Bank of America, supra, 224 Cal.App.4th at p. 1469.) Plaintiff has done so here. Defendant's remaining arguments as to the sufficiency of allegations require the Court to weigh evidence or consider matters outside the FAC. (See e.g., Reply at p. 4:4-6, ["Defendant was not making a material misrepresentation, and signature of this agreement was not harmful to Hola Comida I, LP in any case."]) Whether such allegations are ultimately supported by evidence is better left to other motion types. Accordingly, Defendant's Demurrer is OVERRULED IN ITS ENTIRETY.

Motion to Strike I.

Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (Code Civ. Pro Sec. 436.)

II.

Analysis

Here, Defendant seeks to strike paragraph 49 from the FAC and the request for punitive damages. As an initial matter, "Plaintiff does not oppose" the striking of paragraph 49 from the FAC. (Opp. at p. 1:8.) Accordingly, Defendant's Motion to Strike Paragraph 49 from the FAC is GRANTED WITHOUT LEAVE TO AMEND.

As to punitive damages, Plaintiff has sufficiently alleged facts sufficient to support the recovery of punitive damages. Civil Code Sec. 3294 provides that "[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant."¿¿¿ ¿¿ As defined in section 3294(c):¿¿ ¿¿ (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.¿¿¿ ¿¿ (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.¿¿¿ ¿¿ (3) "Fraud" means that a defendant intentionally misrepresented or concealed a material fact and did so¿intended¿to harm a plaintiff.¿ ¿¿¿

Here,¿as discussed above, Plaintiff has sufficiently alleged fraud in the FAC. The Court acknowledges that "[p]unitive damages are recoverable in those fraud actions involving intentional, but not negligent, misrepresentations." (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1241.) However, Plaintiff's first cause of action alleges intentional misrepresentation. Therefore, Plaintiff may be entitled to punitive damages. ¿¿ Accordingly, Defendant's Motion to Strike punitive damages is DENIED.¿

IT IS SO ORDERED. Dated: August 19, 2026 ___________________________________ Randolph M. Hammock Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at [email protected] by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part. | Home -->)" -->