Ressler v. Piontak CA2/8

Filed 5/31/22 Ressler v. Piontak CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JAMES RESSLER et al., B312694

Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. 21STCV04261) v.

LENNY PIONTAK et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, William F. Fahey, Judge. Affirmed.

Benice Law and Jeffrey S. Benice for Plaintiffs and Appellants.

Buchalter, Robert M. Dato and Russell L. Allyn for Defendants and Respondents.

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This appeal is from the judgment entered after the sustaining of an unopposed demurrer to the complaint. Plaintiffs James Ressler and Lauren Karp, and defendant Lenny Piontak were shareholders of a corporation, Luxe West, Inc. Defendant Michelle Sivertsen is Mr. Piontak’s daughter and was employed by the business. Plaintiffs sued defendants, alleging they plundered business assets and failed to pay taxes. Defendants demurred, arguing plaintiffs lacked standing to make derivative claims belonging to the corporation, among other arguments. Plaintiffs did not oppose the demurrer, but filed a first amended complaint after the deadline to file their opposition to the demurrer. The trial court rejected the untimely first amended complaint for filing and sustained the unopposed demurrer without leave to amend. We affirm. FACTS On June 2, 2020, plaintiffs filed their complaint against defendants, alleging causes of action for breach of fiduciary duty, accounting, declaratory relief, and indemnity. Plaintiffs alleged Mr. Piontak invested in Luxe West, Inc., in exchange for a 33 1/3 percent share of the business. Mr. Piontak hired his daughter, Ms. Sivertsen, to work as the corporation’s controller and director of operations. Defendants allegedly plundered the business, sold all of its inventory, and failed to pay more than $400,000 in payroll taxes, for which plaintiffs allege they are liable as shareholders of the business. Plaintiffs did not allege they had caused the taxes to be paid, or that any enforcement action had been taken against them. On March 8, 2021, defendants demurred, arguing plaintiffs lacked standing to make derivative claims belonging to the corporation. Defendants also argued plaintiffs were judicially