Joshua Billingsley, et al. v. Asam Wu, et al.

CASE NO.: 25STCV24345 CROSS-DEFENDANT BEN EILBIGLIE'S DEMURRER TO DANNY ATTAR'S CROSS-COMPLAINT MOVING PARTY: Cross-Defendant Ben Eilbiglie RESPONDING PARTY: Cross-Complainant Danny Atar, in

pro per Plaintiff Joshua Billingsley ("Billingsley") was on the premises located at 45127 Tioga Street, Temecula, California 92592 (the "Property") as a tenant when a garage door suddenly fell and struck him on the head and body. Billingsley alleges that defendant Danny Atar ("Atar"), along with defendants Legendary Garage Door Repair, Inc. ("Legendary Garage") and Ben Eilbiglie ("Eilbiglie"), negligently performed repairs, service, and/or maintenance with respect to the garage door, and/or failed to properly perform such repairs, service, and/or maintenance, giving rise to the incident. Atar now brings crossclaims against Eilbiglie.

I. INTRODUCTION On August 19, 2025, Plaintiffs, Joshua Billingsley and Nina Billingsley, filed a Complaint against defendants Atar, Legendary Garage, and Eilbiglie, among others, for negligence, premises liability, and loss of consortium.

On April 6, 2026, Atar filed an Answer to the Complaint and concurrently filed a Cross-Complaint against Eilbiglie for breach of contract, declaratory relief, equitable indemnity, unjust enrichment/restitution, fraud/concealment, conversion, and contribution. Atar is self-represented.

On July 1, 2026, Eilbiglie filed this demurrer to the Cross-Complaint. On August 26, 2026, Atar filed an opposition. At the time of this writing, no reply had been filed.

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, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ "Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice."¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

III. DISCUSSION Eilbiglie argues the first cause of action for breach of contract, second cause of action for declaratory relief, fourth cause of action for unjust enrichment, fifth cause of action for fraud/concealment, and sixth cause of action for conversion are unrelated to the underlying personal injury action which is the basis of the Billingsley's Complaint. The argument lacks merit.

A party against whom a cause of action has been asserted in

a complaint or cross-complaint may file a cross-complaint asserting any cause of action against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in the cross-complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him.¿ (Code Civ. Proc. Sec. 428.10, subd. (b)(1).)¿¿ " Where a person files a cross-complaint as authorized by Section 428.10, he may unite with the cause of action asserted in the cross-complaint any other causes of action he has against any of the cross-defendants. " (Code Civ. Proc. Sec. 428.30, emphasis added.)

Here, Eilbiglie concedes the third cause of action for equitable indemnity and seventh cause of action for contribution are directly related to Plaintiff's personal injury claims. Accordingly, as authorized by Code of Civil Procedure section 428.30, Atar may join any other causes of action he has against Eilbiglie in the Cross-Complaint.

Eilbiglie next argues the fifth cause of action for fraud/concealment fails for lack of particularity. This argument is meritorious. Fraud based on concealment requires that "(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage."¿ (Bigler-Engler v. Breg, Inc. ¿(2017) 7 Cal.App.5th 276, 310-311; CACI No. 1901.)

Here, the Cross-Complaint alleges as follows: Atar was listed as the Responsible Managing Officer for Legendary Garage while Eilbiglie acted as the Responsible Managing Employee. (Cross-Complaint, P. 3.) The parties operated under an agreement wherein the contractor's license, which was issued directly to Legendary Garage, would be used for company operations with a 50/50 split after deduction of material costs. (Cross-Complaint, P.P. 2, 4.) The agreement required that any use of the contractor's license adhere to their agreed structure, including reporting jobs and sharing profits. (Cross-Complaint, P. 5.)

However, Eilbiglie began diverting business outside the agreement and, in late 2022, began performing jobs without reporting them, without sharing profits, and without Atar's knowledge or approval. (Cross-Complaint, P. 10.) This includes the work done on the garage door of the Property. (Cross-Complaint, P. 11.)

Missing from the Cross-Complaint is any factual allegations explaining how Atar would not have acted if he had known Eilbiglie was performing jobs without reporting them to Atar or that Eilbiglie was retaining profits without sharing them. Likewise, the Cross-Complaint does not allege facts that Eilbiglie intended to conceal these facts with the intent to defraud Atar. At minimum, the third and fourth elements are not sufficiently alleged. The fraud cause of action is therefore subject to demurrer.

IV. CONCLUSION The demurrers to the first, second, fourth, and sixth causes

of action are OVERRULED. The demurrer to the fifth cause of action is SUSTAINED. Leave to amend is GRANTED. Cross-Complainant Danny Atar is ordered to serve and file the First Amended Cross-Complaint within 15 days of this order. Moving party to give notice.

Dated: September 9, 2026 | | | Brock T. Hammond Judge of the Superior Court | Case Number: 25STCV37750 Hearing Date: September 9, 2026 Dept: 407 Tentative Ruling Judge Brock T. Hammond, Department 407 HEARING DATE: September 9, 2026 TRIAL DATE: Not set CASE: Mario Rodriguez v. Tyler Perry, et al.