CMC; Demurrer; 3 Motions to Compel
dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs' claim is barred on the ground there was no relationship requiring Nissan to disclose known defects." Here, plaintiff has set forth those same allegations in her FAC.
To the extent that FCA relies on California Supreme Court case of Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, for their argument, the Court made clear that Dhital is distinguishable: "Rattagan's tort claims are, of course, based on alleged conduct committed during the contractual relationship but purportedly outside the parties' chosen rights and obligations. This court has granted review in two other cases -- Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 300 Cal.Rptr.3d 715, review granted Feb. 1, 2023, S277568 and Kia America v.
Superior Court (Feb. 3, 2022, D079858) [nonpub. opn.], review granted Apr. 20, 2022, S273170 -- both of which involve claims of fraudulent inducement by concealment claims as well as the potential interplay with remedies available under the Song-Beverly Consumer Warranty Act (Civ. Code, Sec. 1791 et seq.). We do not address these issues here." (Id. at p. 41, fn. 12.)
"Under California law, a vendor has a duty to disclose material facts not only to immediate purchasers, but also to subsequent purchasers when the vendor has reason to expect that the item will be resold." (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859.)
There are "four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts." (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651
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A "transactional relationship" is not required. Even if it were, the warranty itself evidences a transactional relationship between the parties with respect to the vehicle. Plaintiff has alleged that FCA had exclusive knowledge of material facts not known to plaintiff and that FCA actively concealed material facts from plaintiff. At the pleading stage, plaintiff has alleged sufficient facts to overcome demurrer on these grounds.
Likewise, the economic loss rule does not bar plaintiff's fraudulent inducement claim. "We acknowledge the differing views taken by courts that have considered this issue. But for the reasons we have discussed above, we conclude that, under California law, the economic loss rule does not bar plaintiffs' claim here for fraudulent inducement by concealment. Fraudulent inducement claims fall within an exception to the economic loss rule recognized by our Supreme Court [citation], and plaintiffs allege fraudulent conduct that is independent of Nissan's alleged warranty breaches. The trial court erred by sustaining Nissan's demurrer to plaintiffs' fraud claim on the ground it was barred by the economic loss rule." (Dhital, supra, 84 Cal.App.5th at p. 843.)
Plaintiff has pled sufficient allegations to overcome FCA's demurrer, and the demurrer will be overruled.
Tentative Ruling: Deborah LaBarre vs John J Thyne, III Tentative Ruling: Deborah LaBarre vs John J Thyne, III Case Number
Case Type Civil Law & Motion Hearing Date / Time Fri, 05/08/2026 - 10:00 Nature of Proceedings CMC; Demurrer; 3 Motions to Compel
Tentative Ruling (1) For all reasons stated herein, the motion of plaintiff Deborah LaBarre to compel further responses to special interrogatories, set one, is continued to June 26, 2026. (2) For all reasons stated herein, the motion of plaintiff Deborah LaBarre to compel further responses to requests for admission, set one, or in the alternative deem matters admitted is continued to June 26, 2026. (3) For all reasons stated herein, the motion of plaintiff Deborah LaBarre to compel further responses to requests for production, set one, and to compel production of documents is continued to June 26, 2026. (4) For all reasons stated herein, the demurrer of plaintiff Deborah LaBarre to the cross-complaint of defendant John J.
Thyne III is continued to June 26, 2026. (5) For all reasons stated herein, the parties shall meet and confer as to the status of the anticipated first amended cross-complaint and as to these outstanding discovery disputes on or before May 22, 2026, and file a joint status report as to their meet and confer efforts on or before June 5, 2026. (6) For all reasons stated herein, to the extent verifications were not served by defendant John J. Thyne III as to the responses he served to the first set of requests for production, requests for admission, or special interrogatories, verifications shall be served on or before May 22, 2026. (7) For all reasons stated herein, should these discovery motions not be resolved or mooted through meet and confer efforts, on or before June 8, 2026, plaintiff Deborah LaBarre shall file and serve compliant separate statements in support of her three motions to compel.
Any response from defendant John J. Thyne III to these separate statements shall be filed and served on or before June 15, 2026.
Background: On June 25, 2025, plaintiff Deborah LaBarre (LaBarre) initiated this action by filing a complaint against defendant John J. Thyne III (Thyne) alleging five causes of action for (1) money had and received, (2) elder abuse, (3) breach of fiduciary duty, (4) fraud, and (5) attorney malpractice. After filing a first amended complaint (FAC) and motion practice over a demurrer to the FAC, on January 2, 2026, LaBarre filed the operative second amended complaint (SAC) against Thyne alleging five causes of action for (1) money had and received, (2) elder abuse, (3) breach of fiduciary duty, (4) fraud, and (5) conversion.
As alleged in the SAC: LaBarre is 77 years old, resides in Colorado, has difficulty seeing because she has macular degeneration, has difficulty hearing because of congenital hearing loss, and has difficulty ambulating. (SAC, P.P. 1-2.) LaBarre is a retired schoolteacher who has never operated a business. (SAC, P. 3.) Thyne is an attorney and has practiced in California for 24 years. (SAC, P.P. 4-5.) In October and November 2023, Thyne was working as an attorney for a real estate development company in Santa Barbara. (SAC, P. 6.) As part of his work, Thyne held money invested by people such as the LaBarre in one or more trust accounts and disbursed funds from those accounts. (SAC, P. 9.)
Around October 2022, Thyne drafted an investment proposal for a real estate development project that was sent to LaBarre. (SAC, P. 10.) Thyne was involved with this project. (Ibid.) A more detailed proposal was subsequently sent to LaBarre. (SAC, P. 11.) This proposal would become a contract if LaBarre agreed to the terms and contributed $50,000 or $100,000 towards financing for a real estate development at 75267 Morningstar Drive, Indian Wells, California (Morningstar Property). (Ibid.) If LaBarre contributed $100,000, LaBarre would be repaid her investment plus 8 percent interest after the Morningstar Property was sold, plus a share of any profits. (SAC, P. 12.) LaBarre accepted the investment proposal. (SAC, P. 13.) On November 8, 2023, LaBarre wired $100,000 into an account controlled by Thyne. (Ibid.)
After wiring the $100,000, LaBarre became a participant in the Residential Real Estate Financing And Equity Share Agreement By And Between 75267 Morning Star Properties LLC And MS Development Capital Group (Morningstar Agreement). (SAC, P.P. 14-15, Ex. 1.) LaBarre wired these investment funds with the intention that they be used for the Morningstar Property pursuant to the Morningstar Agreement (collectively, Morningstar Joint Venture). (SAC, P. 17.) Pursuant to the Morningstar Agreement, LaBarre and the other investors were to be repaid from the net proceeds (Net Proceeds) of the sale of the Morningstar Property. (SAC, P.P. 20-21.) The parties to the Morningstar Agreement were 75267 Morningstar Properties LLC and the unincorporated association MS Development Capital Group (MSDCG). (SAC, Ex. 1 at pp. 1, 6.)
"Upon sale of the Property, MSDCG will receive repayment of any priority notes for advances pursuant to paragraph 7 herein, then a return of the Advanced Funds with 8% interest, plus 8% of net profits. At the direction of MSDCG, these funds must be paid to a law firm or other third party to hold and distribute as agreed among the participants of MSDCG." (SAC, Ex. 1 at P. 10.) "Following sale of the property and distribution of the proceeds thereof, this agreement shall be extinguished as complete.
The term is expected to be fifteen (15) months or less." (FAC, Ex. 2 at P. 2.) "The plan for this project is to complete improvements and sell for a profit within 15 months of this Agreement...." (SAC, Ex. 1 at P. 8.) "Fiduciary Duties: All parties to this agreement, regardless of when said party joined, shall have the utmost duty of care and competence to the best interests of the remaining parties to the fullest extent of the law and any injured party for breach of such duties may seek all legal remedies on behalf of the Property, that party, or any combination of parties hereto." (SAC, Ex. 1 at P. 16.)
The Morningstar Property was sold in May 2024. (SAC, P. 22.) In May 2024, the Net Proceeds were paid to Thyne. (SAC, P. 24.) In May 2024, the Net Proceeds were deposited in a trust account controlled by Thyne. (SAC, P. 25.) Thyne was the only person with access to this trust account. (SAC, P. 26.) There were sufficient Net Proceeds to repay with interest all that was due to the investors in the Morningstar Agreement including LaBarre. (SAC, P. 23.) Upon receipt of the Net Proceeds and depositing such funds into the trust account, Thyne was obligated to repay the investors including LaBarre the amount of their investment plus 8 percent interest. (SAC, P. 27.)
On June 9, 2024, Thyne repaid $50,000 plus 8 percent interest to another investor in the Morningstar Joint Venture. (SAC, P. 29.) Thyne failed to notify LaBarre of the sale of the Morningstar Property, that he had received the Net Proceeds, that he had placed the Net Proceeds in a trust account, or that any other investor had been repaid their investment from the Net Proceeds. (SAC, P.P. 28-31.) LaBarre learned of the Morningstar Property sale in August or September 2024. (SAC, P. 34.) Thyne refused to repay LaBarre her investment funds or the 8 percent interest due to her. (SAC, P.P. 35-36.) LaBarre never authorized Thyne to use her investment funds for any purpose other than the Morningstar Joint Venture. (SAC, P.P. 17, 37.)
After the Morningstar Property was sold in May 2024, Thyne gambled with the money that he was obligated to deliver to LaBarre by using LaBarre's money to finance risky ventures for his own potential benefit. (SAC, P. 51.) More than a year after the sale of the Morningstar Property, Thyne refuses to deliver the money LaBarre was entitled to receive from the sale of the Morningstar Property. (SAC, P. 50.) Thyne wrongfully withheld LaBarre's assets for his own use. (SAC, P.P. 66-68.)
On February 18, 2026, Thyne filed an answer to the SAC generally denying the allegations therein and setting forth thirty-seven affirmative defenses. Also on February 18, 2026, Thyne filed a verified cross-complaint (CC) against LaBarre and seven other cross-defendants, Kary Lindgren (Lindgren), 35 Las Alturas LLC, Country Club Lifestyle 1 LLC, Country Club Lifestyle 2 LLC, Bruce Wellens (Bruce), Thomas Mitchell, and Mitra Ghanadian.
The CC alleges that Bruce's son, Brian Wellans (Brian), recruited Thyne to allow Brian to transact business ventures (Joint Ventures) through an account in the name of Law Offices of John J. Thyne III. (CC, P. 15.) Brian had previously been convicted of financial crimes. (Ibid.) "Because Brian ... was not able to own real property in his own name, nor bank accounts, he asked [Thyne] to grant him access to a business account styled Law Offices of John J. Thyne III for the purpose of receiving capital contributions then receiving proceeds from sales of joint venture properties that were distributed to the various joint venturers." (CC, P. 23.)
For several years, the Joint Ventures arranged by Brian were successful. (CC, P. 15.) However, "[d]uring the years he used the business account of Law Offices of John J. Thyne III, Brian ... caused an arrearage of hundreds of thousands of dollars to accrue in that account." (CC, P. 25.) Then, on May 5, 2024, Brian passed away after suffering an aneurysm on April 22, 2024. (CC, P.P. 15, 30.)
Upon Brian's death, due to cash shortfalls as to other Joint Ventures, "it was decided that the proceeds of funds from the Morningstar [Joint] Venture would be used to salvage the Barker Pass Venture, the 740 Hot Springs Venture, and the 750 Hot Springs Venture." (CC, P. 15.) "All three of these [other] ventures were held in the name of [Lindgren's] LLCs as Brian ... had arranged." (Ibid.) Thyne alleges that the proceeds of the Morningstar Joint Venture were used to service loans on behalf of Lindgren. (Ibid.) As alleged by Thyne, rather than returning those funds to the coventurers, Lindgren absconded with the money. (Ibid.)
As Thyne alleges, it was Bruce or Brian that recruited LaBarre's participation in the Morningstar Joint Venture. (CC, P. 2.) According to Thyne, he has been sued in this action by LaBarre for return of her funds despite that Thyne never met LaBarre or communicated with her. (CC, P. 15.) Thyne alleges that, as a coventurer himself, Thyne along with LaBarre and some of the other cross-defendants are all entitled to a return of their funds (apparently from Lindgren or his affiliates) related to the Joint Ventures and an accounting. (Ibid.)
The CC sets forth seven causes of action for (1) accounting, (2) conversion, (3) constructive fraud, (4) breach of fiduciary duty, (5) breach of contract, (6) quasi-contract/unjust enrichment, and (7) negligence. The first, second, third, sixth, and seventh causes of action are asserted against all cross-defendants including LaBarre. On March 24, 2026, LaBarre filed a demurrer to the CC on the grounds that the CC fails to state a cause of action against her. LaBarre's demurrer is set for this hearing. No opposition was filed by Thyne.
Previously, on December 31, 2025, LaBarre filed three motions to compel including (1) a motion to compel further responses to special interrogatories, set one, (2) a motion to compel further responses to requests for admission, set one, or in the alternative deem matters admitted, and (3) a motion to compel further responses to requests for production, set one, and to compel production of documents. These motions are also set for this hearing. No oppositions were filed by Thyne.
Analysis: (1) Demurrer The CC names LaBarre and seven other cross-defendants not previously named as parties in this action. LaBarre states that during the meet and confer discussions pertaining to her demurrer, Thyne relayed his intention to file a first amended cross-complaint (FACC) and to remove LaBarre as a named defendant to most of the causes of action in the CC. (Demurrer, pp. 1-2.) Thyne has not filed an opposition to this demurrer or an FACC. There is no proof of service indicating that Thynne has served process on any of the seven new parties named as cross-defendants. It appears the filing of an FACC is imminent and that this could moot most if not all of the arguments raised by LaBarre. Under these circumstances and to promote judicial efficiency, the court will continue LaBarre's demurrer to June 26, 2026.
(2) Motions to Compel LaBarre has filed three motions to compel as to her first round of discovery to Thyne, including motions to compel further responses to special interrogatories, requests for admission, and requests for production. It appears Thyne has served responses to this discovery and LaBarre contends Thyne's responses and production are inadequate. Thus, each of these motions must be supported by a separate statement. (Cal. Rules of Court, rule 3.1345(a).) However, LaBarre has not filed separate statements supporting any of these motions. A court has discretion to deny a motion to compel when the moving party does not file a compliant separate statement. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) The court, in its discretion, will continue these motions to June 26, 2026, so that LaBarre may file compliant separate statements.
(3) Meet and Confer The parties are required to meet and confer as to these discovery motions and the demurrer. (See Code Civ. Proc., Sec.Sec. 430.41, subd. (a), 2016.040.) It appears the parties have not met and conferred as to the discovery motions. It appears the parties did meet and confer as to the demurer, but communications broke down after it was agreed that Thyne would file an FACC in response to the arguments raised by LaBarre. The court will require the parties to further meet and confer on the issues raised by LaBarre's motions and file a joint status report.
Tentative Ruling: IQ Holdings Inc vs Surfdog Ventures LLC et al