Order Submitted Matter

Cal. Super. - 6th Dist.January 29, 2019

\OOONQMAL’JN- NNNNNNNNN-d-tHH-dv-A-flflu-I OONQUIAUJN-‘OOMNOUIAUJN-‘O Decision on Submitted Matter FiL E 3EP232019 Clerk of the Court m 83W 0w o eoumv 0' Sangepmv SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA VINCE NAKAYAMA, Case No. 19CV342281 Plaintiff, ORDER REGARDING: 1) DEMURRER v. BY S. SINGAL AND FCREI; AND 2) JOINDER BY THE TRUST SUNSEET SINGAL et a1., Defendants. Currently before the Court are the following matters: (1) the demurrer by Defendants Suneet Singal and First Capital Real Estate Investments, LLC (“FCREI”) to the first amended complaint (“FAC”) of Plaintiff Vince Nakayama; and (2) the joinder by Singal and defendant Majique Ladnier, in their capacities as trustees of the Ladnier-Singal Family Trust (the “Trust”), to the demurrer. I. BACKGROUND A. Factual Singal, a licensed mortgage broker, is the chief executive officer, chairman, and sole owner of FCREI. (FAC, 1H] 2, 3.) FCREI is the majority owner and Singal is the managing partner 0f defendant First Capital Real Estate Advisors, LP (“FCREA”). (Id. 11 4.) Additionally, FCREI has a subsidiary, defendant FCREI Property Management, LLC (“FCREI Property Management”). (Id. 1] 5.) Singal and his wife, Ladnier, are also trustors and trustees of the Trust. \oooxlomAmNH NNNNNNNNN-~_-H_‘_Hfl oouoxm-wav-‘OOOONQUIAWN-O (Id. 1] 6.) The Trust owns defendant First Capital Advisor, LLC (“FCMA”), which in turn owns defendant SRS, LLC (“SRS”). (1d. 1N 6, 7.) FCREI, FCREA, FCREI Property Management, the Trust, FCMA and SRS are allegedly the alter egos of one another and Singal. (FAC, 1N 3, 5, 6, 9.) Singal and his businesses allegedly have a history of defrauding investors. (Id. 1] 14.) In September 201 5, Singal and FCREI approached Plaintiff for a $600,000 bridge loan and represented that they needed the funds to facilitate FCREI’s acquisition of a mortgage company named Castle Mortgage. (FAC, 1H] 16, 17.) Singal and FCREI further represented that the acquisition of Castle Mortgage was scheduled to close within the next 48 hours and FCREI needed an additional $600,000 to consummate the transaction. (Id. 1] l7.) On September 18, 201 5, unaware of Singal’s history of defrauding private lenders, Nakayama wired $300,000 to a FCREI bank account designated by Singal. (FAC, 1] 18.) “Although that loan, according t0 its terms, was to be repaid with interest within four months, Singal and [FCREI] failed do so-and over the course of the next two years, would repay only part of the loan’s principal balance.” (Ibid.) Plaintiff filed suit to recover the unpaid balance of that loan (the “Castle Mortgage Loan”) and obtained a stipulated judgment for over $800,000 in December 201 8. (Id. 11 19.) However, the judgment has not been satisfied. (Ibid.) Later, in November 201 5, “Singal convinced [Plaintiff] to wire an additional $500,000-in consideration for which, Singal promised to sell [Plaintiff] a [two percent] share in [FCREA].” (FAC, 1] 21.) Plaintiff, Singal, and FCREI signed an Agreement for Sale of Limited Partnership Interest (“Agreement”) on or about November 2, 201 5, which provided that Plaintiff’s two percent interest guaranteed him quanerly distributions of at least $18,750 beginning on January 31, 2016. (Id. 1H] 21, 24, 35, 42.) “After soliciting and accepting [Plaintiff’s] $500,000 investment ..., Singal and [FCREI] failed t0 make the first guaranteed payment on January 3 1 , 2016-and thereafter failed to make any distributions .” (Id. ‘fi 26.) Furthermore, Singal took steps to make FCREA worthless. (FAC, fl 27.) At the time of Plaintiff‘s investment, FCREA had one significant non-cash asset: a contract between FCREA and First Capital Real Estate Trust, Inc. (“FCREIT”), a subsidiary of FCREI. (Id. fl 28.) That OWQQMhWNy-t NNNNNNNNN-‘n-u-d-a-a-au-Hfl... OONQMAUJN-‘OCOONONUIAWN-‘O contract obligated FCREIT to pay FCREA a fee from the income generated by the valuable real assets FCREIT owned. (Ibid.) Sometime after November 201 5, Singal caused FCREIT to sell its real assets to third parties. (FAC, 11 30.) Singal structured the deals so that the third parties paid Singal personally through the Trust, instead of paying FCREIT for the properties. (Ibid.) Plaintiff alleges that FCREA was thereby rendered valueless. (Ibid.) Singal also took steps to drain FCREA of its cash assets, which he transferred to FCREI. (FAC, 1] 3 1 .) “For example, records obtained in 201 8 by [Plaintiff] in the [Castle Mortgage Loan] action show that Singal caused [FCREA] to transfer over $300,000 in cash assets to [FCREI] over a one-week period in March 2016-not long after [FCREA] failed to make” the first guaranteed distribution to Plaintiff. (Ibid.) “Throughout 2016 and 201 7, [Plaintiff] attempted to work with Singal in good faith to obtain an accounting of [FCREA’S] books and records, his guaranteed payments, or, a return of his investment.” (FAC, 1] 32.) However, Singal refused and concealed the transfer of FCREIT’S property and FCREA’S cash assets. (Ibid.) Instead of divulging that FCREA had been rendered valueless, Singal lied about the delayed distributions and claimed as late as December 201 7, that the delay was due to the fact that the “advisor business is fairly complex.” (Ibid.) Given the private nature of FCREI, FCREA, and FCREIT, Singal’s wrongful conduct was not discoverable by Plaintiff. (Ibid.) B. Procedural Based on the foregoing allegations, Plaintiff filed the operative FAC against Singal, FCREI, FCREA, FCREI Property Management, the trustees of the Trust, FCMA, and SRS, alleging causes of action for: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) fraudulent inducement; (5) accounting; and (6) money had and received. Singal and FCREI now file this demurrer to the FAC. Singal and Ladnier, in their capacities as trustees of the Trust, later filed a joinder to the demurrer. Plaintiff opposes both \ooouomAwNH NNNNNNNNNfl-Ir-‘n-wn-t--~fl WNQMAWNP‘COOONQUIAWN-‘o motions. The Court held oral argument on September 19, 201 9, and took the matter under submission. II. JOINDER Singal and Ladnier, as trustees of the Trust, filed their joinder to the demurrer on August 29, 2019. They served the joinder 0n Plaintiff the same day, mailing the joinder t0 Plaintiff from New York. A joinder is subject to the same notice and service requirements as the moving party’s motion. (See Frazee v. Seely (2002) 95 Ca1.App.4th 627, 636-637; see also Lerma v. County ofOrange (2004) 120 Ca1.App.4th 709, 719; Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1176.) Thus, similar to the demurrer, Singal and Ladnier were required t0 file their joinder 16 court days prior to the hearing, with 10 additional calendar days for service by mailing. (See Code Civ. Proc. §§ 1005, subd. (b) and 1013.) However, Singal and Ladnier’s joinder was filed and served only 14 court days before the hearing and is, therefore, untimely. Moreover, it is unclear whether Plaintiff actually received the joinder before his opposition was due on September 6, 2019. Accordingly, Singal and Ladnier’s joinder is DENIED. III. DEMURRER Singal and FCREI demur to each and every cause of action 0f the FAC on the ground of failure t0 allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (6).) A. Legal Standard The function 0f a demurrer is to test the legal sufficiency of a pleading. (Trs. ofCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed t0 be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align), internal citations and quotations omitted.) But while “[a] demurrer admits all facts properly pleaded, [it does] not \OOOVGUIAUJN-t NNNNNNNNNI-n-nflflu-tp-tn-It-tp-n-t WVQMAWNr-‘OOWNONMAWN-‘O [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club 0f Southern California (201 1) 201 Cal.App.4th 1112, 1120.) B. Breach of Contract (First Cause of Action) Singal and FCREI argue that the first cause of action for breach of contract fails to state a claim because the copy of the Agreement attached t0 the FAC as Exhibit B is not signed by Singal or FCREI, and thus there was no written contract. Singal and FCREI further argue that if there was an oral contract, the two-year statute of limitations applicable to oral contract breaches (see Code Civ. Proc., § 399) already has run. But Plaintiff expressly alleges that the written Agreement was signed by Singal and FCREI on or about November 2, 2015. (FAC, 1H] 21, 24, 35, 42.) This factual allegation is accepted true on demurrer. (See Align, supra, 179 Cal.App.4th at p. 958.) Consequently, Plaintiff adequately alleges the existence of a written contract between the parties (i.e., the written Agreement) and the first cause of action thus is not controlled by a two-year statute of limitations. (A breach of a written contract generally is subj ect to a four-year limitations period. (Code Civ. Proc., § 337).) For purposes of this demurrer, it is immaterial that the copy of the Agreement attached to the FAC as Exhibit B is not signed by Singal or FCREI. Plaintiff explains that Exhibit B is merely a copy of the final version of the Agreement and he has not been able to locate at this time his copy of the written Agreement that was signed by Singal. (FAC, 1N 21, 24.) Plaintiff’s admission that he cannot locate a fully executed copy of the Agreement at this time does not establish that such a copy does not exist or that the Agreement was never executed by Singal and FCREI. For these reasons, Singal and FCREI’S demurrer to the first cause of action is OVERRULED. C. Breach of Implied Covenant (Second Cause of Action) Singal and FCREI argue, among other things, that the second cause of action for breach of the implied covenant of good faith and fair dealing fails to state a claim because there are no soooxlom-pwm.- NNNNNNNNN-au-‘n-Iu-I-‘r-tu-n-au-afl WNQM$WNHOOWNGM#WN_O allegations showing that their alleged wrongful conduct frustrated Plaintiff’s rights to receive the benefits 0f the Agreement. “The covenant of good faith and fair dealing is implied in law to assure that a contracting party ‘refrain[s] from doing anything to injure the right of the other to receive the benefits of the agreement.’ [Citation.] In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.) “It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 3 1 7, 349- 350; Racine & Laramie, Ltd. v. Department ofParks & Recreation (1992) 11 Cal.App.4th 1026, 1032 “[the implied covenant is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract”].) Plaintiff here alleges that Singal and FCREI interfered with his right to receive benefits under the Agreement by “selling the [FCREIT’S] real assets to third parties for no consideration t0 [FCREIT], thereby severely devaluing [FCREA],” and “transferring all of [FCREA’s] cash assets to [FCREI] in exchange for nothing” (FAC, 1H} 45 & 46.) However, Plaintiff does not point to any contractual provision that obligated Singal and FCREI to sell FCREIT’s and/or FCREA’S assets for a particular amount. Plaintiff cannot complain about a deprivation of the benefits due to a reduction in FCREA’s valuation because the Agreement never provided that FCREA would be valued at a certain amount. Finally, Plaintiff does not allege any facts showing that Singal and FCREI’s alleged conduct frustrated his right to receive the benefits of the Agreement, i.e., a two percent interest in FCREA and guaranteed distributions in a set amount. Accordingly, Singal and FCREI’s demurrer to the second cause of action is SUSTAINED, with 2O days’ leave to amend. (See City ofStockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [where plaintiff has not had opportunity to amend complaint in response to \oooxloxmAwNH NNNNNNNNNflH-a-I-Hu-a--n-n OO\IO\UI#UJNt-‘O\OOONO\UIAWN-IO demurrer, “leave to amend is liberally allowed as a matter of fairness unless the complaint shows on its face that it is incapable of amendment”].) D. Breach of Fiduciary Duty (Third Cause of Action) Singal and FCREI asserts that the third cause of action for breach of fiduciary duty fails t0 state a claim because there was no fiduciary relationship between Singal and Plaintiff under the terms of the Agreement. Singal and FCREI point out that the Agreement states, “Nothing contained in this Agreement shall be deemed or construed by the parties to create the relationship of principal and agent, partnership, joint venture or any other association between the parties hereto.” (FAC, Ex. B, Section 13(h).) Plaintiff alleges he purchased a limited partnership interest in FCREA, Singal is the managing partner of FCREA, and “[a]s such, Singal owed [him] a fiduciary duty .” (FAC, 1N 4, 21, & 51, Ex. B.) Thus, as currently pled, the second cause of action is predicated on the allegation that Singal and Plaintiff had a limited partnership relationship. (See Cleveland v. Johnson (2012) 209 Cal.App.4th 13 1 5, 1343-1 344 (Cleveland) [a limited partnership is where the general partner manages and controls the partnership business and the limited partner provides capital, but does not take part in running the enterprise].) A managing partner owes fiduciary duties to other members 0f the partnership. (Cleveland, supra, 209 Cal.App.4th at pp. 1343-1 344; Everest Investors 8 v. McNeil Partners (2003) 114 Cal.App.4th 41 1, 424-425 (Everest).) Additionally, the fiduciary obligations of a managing partner with respect t0 matters fundamentally related to the partnership business cannot be waived or contracted away in the partnership agreement. (Everest, supra, 114 Cal.App.4th at pp. 424-425; BT-I v. Equitable Life Assurance Society 0fthe United States (1999) 75 Cal.App.4th 1406, 1410-1412.) Singal and FCREI’s argument-that there cannot be a partnership between Plaintiff and Singal because the Agreement says that it does not create a partnership-is not well-taken. The question of the existence of a partnership depends primarily upon the intention of the parties ascertained from the terms of the agreement and from the \oooxloxmhwm- NNNNNNNNNflHflflH~flHH~ ”NOVIbUJNHOOOONO‘MAWNHO surrounding circumstances. [Citations.] Ordinarily the existence of a partnership is evidenced by the right of the respective parties to participate in the profits and losses and in the management of the business. [Citations.] In ascertaining the intention of the parties, where they have entered into a written agreement, such intention should be determined chiefly from the terms of the writing. [Citation] While the question of whether a partnership exists is to be determined from the nature of the relation agreed upon rather than the name which the parties have given to it, some weight must be given to the language of the parties themselves. [Citations.] It is the intention as evidenced by the terms of the agreement, and not the subjective or undisclosed intention of the parties, that controls. As was said by this court in Associated Piping etc. C0. v. Jones, 17 Cal.App.2d 107, 110, “The parties did intend to create exactly the relationship as shown by the contract, but did not intend that relationship t0 be called that of partnership. However, their intention in this respect is immaterial [citation]; and ifthe contract by its terms establishes a partnership between the parties, even the expressed intent that it should not be s0 classed would be ofno avail. It is the intent t0 do the things which constitute a partnership that usually determines whether 0r not that relation exists between the parties. [Citation.]” (Constans v. Ross (1951) 106 Cal.App.2d 381, 386-387, italics added.) Thus, the statement in the Agreement that the Agreement does not establish a partnership is not, in and of itself, dispositive of the issue of whether there is a partnership between Plaintiff and Singal. Rather, the issue turns on whether Plaintiff and Singal intended to do things which constitute a partnership. As Singal and FCREI do not address whether Plaintiff and Singal intended to do things pursuant to the Agreement which constituted a partnership, they have not shown that there was no fiduciary relationship between Singal and Plaintiff. Singal and FCREI’s demurrer to the third cause of action hence is OVERRULED. \OOONO\UIAUJNp-n NNNNNNNNN-n-n-IH-HHHu-Iu-A OONQUIAUJN-‘OOOONONUIAWN-‘O E. Fraudulent Inducement (Fourth Cause of Action) Singal and FCREI initially argue that the fourth cause of action for fraudulent inducement fails to state a claim because it is time-barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338. They assert that Plaintiff cannot rely on the doctrine 0f delayed discovery because Plaintiff alleges Singal had a history of defrauding investors thét dates back to 2008. Singal and FCREI contend that Plaintiff, therefore, had notice or information of circumstances to put him on inquiry or the opportunity to obtain knowledge from sources open to his investigation. In order to sustain a demurrer on the basis of the statute of limitations, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint show that the action might be barred. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1317.) “In assessing whether claims are time-barred, two basic questions drive [the] analysis: (a) [w]hat statutes of limitations govern the plaintiff‘s claims? (b) [w]hen did the plaintiff’s causes of action accrue?” (Id. p. 13 1 6.) Generally, a cause of action accrues at the time when the claim is complete with all its elements. (Id. p. 1317.) A claim such as fraud accrues and, thus, the limitations period commences when “the plaintiff suspects or should suspect that her injury was caused by wrongdoing.” (Jolly v. Eli Lilly & C0. (1988) 44 Cal. 3d 1103, 1110; see also Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 807 [“we look to whether the plaintiffs have reason to suspect that a type of wrongdoing has injured them”].) “Resolution of the statute of limitations issue is normally a question of fact.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810.) Plaintiff alleges that Singal and FCREI concealed their alleged fraud throughout 2016 and 2017, by refusing to provide him with an accounting of FCREA’S books and records and falsely stating that his guaranteed distributions had been delayed merely because the “advisor business is fairly complex.” (FAC, w 32 & 63.) Although Plaintiff also alleges that Singal and his businesses had a history of defrauding investors and Singal admitted committing fraud in response to a formal accusation filed by the California Department of Real Estate in 2008 (Id. 1H 14 & 15), the Court cannot say, as a matter of law, that Plaintiff should have suspected that he cwflamkwwfl NNNNNNNNNr-Ir-I-I-wu-tu-nu-ng-n-a WNQMAWNHOOWNQlfl$KfiN~O was a victim of the fraud allegedly perpetrated by Singal and FCREI in 201 5, simply because Singal previously admitted to fraud in 2008. Thus, Singal and FCREI’s statute of limitations argument fails. Next, Singal and FCREI argue that Plaintiff cannot recover in tort for the alleged harm because the alleged misrepresentation is a term of the Agreement and, therefore, compensation for the breach is limited t0 contract remedies. In other words, Singal and FCREI contend that the claim is baned by the economic loss rule. The economic loss rule provides that “where a purchaser’s expectations in a sale are frustrated because the product he brought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses.” (Robinson Helicopter Company v. Dana Corporation (2004) 34 Cal.4th 979, 988 (Robinson).) This doctrine hinges on a “distinction drawn between transactions involving the sales of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale 0f defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts.” (lbid.) The rule requires a purchaser to recover solely in contract for purely economic loss due to disappointed expectations, unless the purchaser can demonstrate harm above and beyond a broken contractual promise. (Ibid.) In Robinson, the California Supreme Court carved out an exception to this rule, holding that it does not bar claims for fraud and intentional misrepresentations, which are independent of the contract that is alleged to have been breached. (Robinson, supra, 34 Cal.4th at p. 991 .) The court reasoned that a breach 0f contract remedy assumes the parties t0 a contract can negotiate the risk occasioned by a breach; given this negotiation, it is “appropriate to enforce only such obligations as each party voluntarily assumed, and to give him only such benefits as he expected to receive .” (Ibid, citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 5 l 7.) However, because a party t0 a contract could not “rationally calculate the possibility that the other party will deliberately misrepresent terms critical to that contract,” the court explained that public policy demanded that the party who is deceived be permitted t0 recover damages not limited to the contract. (Ibid) Thus, where one party commits fraud during 10 \OOOVQUIAQJN... NNNNNNNNNI-fi--nu-t-tu-I_-H WVQMAUJN-‘OOOONONMAWN-o the contract formation or performance, the injured party may recover in contract and tort. (Ibid; see Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 79, 78; see also Erlich v. Menezes (1999) 21 Cal. 4th 543, 551-552 [“Tort damages have been permitted in contract cases where the contract was fraudulently induced.”].) For these reasons, the economic loss rule does not apply to Plaintiff’s claim for fraudulent inducement. Finally, Singal and FCREI argue that Plaintiff cannot state a claim for fraudulent inducement because the Agreement contains an integration clause, providing that n0 party made any promises or representations of any kind to induce the execution of the Agreement. This argument lacks merit. It is well settled that “ ‘[a] party to a contract who has been guilty of fraud in its inducement cannot absolve himself 0r herself from the effects of his or her fraud by any stipulation in the contract, either that no representations have been made, or that any right that might be grounded upon them is waived. Such a stipulation or waiver will be ignored, and parol evidence of misrepresentations will be admitted, for the reason that fraud renders the whole agreement voidable, including the waiver provision. [Citations.]’ ” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1500-1503; see 1 Witkin, Summary of Cal. Law (1 1th ed. 2018) Contracts, § 305; see also Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 300-301 [“Fraud in the inducement renders the entire contract voidable, including any provision in the contract providing the written contract is, for example, the sole agreement 0f the parties, that it contains their entire agreement and that there are no oral representations (integration/no oral representations clause).”].) Singal and FCREI’s demurrer to the fourth cause of action accordingly is OVERRULED. F. Accounting (Fifth Cause of Action) Singal and FCREI argue that the fifth cause of action for an accounting fails to state a claim because it is derivative of the first cause of action for breach of contract and that claim does not survive demurrer. But since that claim does survive demurrer (as explained above), this argument fails. Singal and FCREI’S demurrer to the fifth cause of action is OVERRULED. 11 CWNOMAWNH NNNNNNNNNI-tu--du-t-t-nu-t.--a._. WNOU‘hWN-‘OCOONOMAWN-‘O G. Money Had and Received (Sixth Cause of Action) Singal and FCREI argue, among other things, that the sixth cause of action for money had and received fails to state a claim because there is an express contract covering the same subj ect matter. I A claim for money had and received is an action based on an implied-in-fact or quasi- contract, and such a claim cannot lie where there exists between the panics a valid express contract covering the same subject matter. (Shvarts v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, 1160; Lance Camper Manufacturing Corp. v. Republic Indemnity C0. (1996) 44 Cal.App.4th 194, 203.) In his first cause of action, Plaintiff alleges the existence of an express written contract (i.e., the Agreement) between him, Singal, and FCREI regarding the provision of a two percent interest in FCREA to Plaintiff in exchange for $500,000. (FAC, 1H] 21-26 & 35-39.) The sixth cause of action incorporates by reference those allegations and alleges that Singal and FCREI kept the $500,000 without transferring a two percent ownership interest in FCREA to Plaintiff. (1d. 1H] 74-78.) The allegations of an express contract are inconsistent with the allegations 0f an implied-in~fact or quasi-contract. Moreover, the allegations of the sixth cause of action are n_ot pled in the alternative. Consequently, the sixth cause of action is improper, at least as currently pled. For this reason, Singal and FCREI’S demurrer to the sixth cause of action is SUSTAINED, with 20 days’ leave to amend. H. Request for Attorney Fees In connection with their demurrer, Singal and FCREI assert they are entitled to an award of attorney fees under Civil Code section 171 7. That statute provides that a prevailing party is entitled to an award of attorney fees in an action 0n a contract, where the contract specifically provides that attomey’s fees and costs incurred to enforce the contract shall be awarded. (Civ. Code, § 1717; North Associates v. Bell (1986) 184 Cal.App.3d 860, 863.) 12 \OOOVGUIADJN" NNNNNNNNN--~-~H-t-H~ OO fl ON UI h w N b-‘ O \O 00 fl ON U1 A W'N '- O therefore, are not entitled to an award of attorney fees. Singal and FCREI’s request for attorney Singal and FCREI are not prevailing parties under Civil Code section 171 7 and, fees is DENIED. Date: IT IS SO ORDERED. 915,3 //\ Themnorable SunilRm“ Judge 0f the Superior Court l3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRsr STREEr S J ',C ‘ IA 11“mm F I L E SEP 2 3 2019 RE: Vince Nakayama vs Suneet Singal et al Clerk of he Court Case Number: 19CV342281 PROOF OF SERVICE Order Regarding: 1) Demurrer by S. Singal and FCREI; and 2) Joinder by the Trust was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you. a party represented by you. or a witness to be called on behalf of that party need an accommodation under the Amen'can with Disabilities Act. please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy in a sealed envelope. addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United Statw Mail at San Jose. CA on September 23. 2019. CLERK OF THE COURT. by Mark Rosales. Deputy. cc: Adam M Forest 315 MONTGOMERY ST FLOOR 10 San Francisco CA 94105 Joshua D Brinen Brinen & Associates LLC 90 Broad Street 10th Floor New York NY 10004 cw-9027 REV 12/08/16 PROOF OF SERVICE