Memorandum Points and Authorities

Cal. Super. - 6th Dist.August 20, 2019

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric Sternberger (SBN: 202295) Sarah N. Léger (SBN: 226877) Jose M. Herrera (SBN: 289590) RAGGHIANTI FREITAS LLP 1101 Fifth Avenue, Suite 100 San Rafael, California 94901 Telephone: (415) 453-9433 Facsimile: (415)453-8269 Email: sleger@rflawllp.com Attorneys for Defendants . DAVID HOWARD LICHTENGER and Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/26/2019 5:49 PM . Reviewed By: L Del Mundo Case #1 9CV353474 Envelope: 3446171 CA RESIDENTIAL OPPORTUNITY FUND Ill LP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CA RESIDENTIAL OPPORTUNITY FUND LP, et a|., Plaintiffs, vs. DAVID HOWARD LICHTENGER, et a|., Defendants. CASE NO.: 19CV353474 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT DATE: January 14, 2020 TIME: 9:00 a.m. DEPT.: 8 JUDGE: Honorable Sunil R. Kulkarni Complaint Filed: August 20, 2019 Trial Date: Not set. 1 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT . 1o 11 12 13 14 15 16 17 18 ‘19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. Introduction .......................................................................................................... 5 II. Statement of Facts .............................................................................................. ' 5 III. Standard of Review ............................................................................................. 6 IV. LegalArgument ...................................................... 6 A. The Complaint, and Each Cause of Action Therein, Fails Because It Is Uncertain ............................................................................. 6 B. First Cause of Action: Fraud ..................................................................... 7 1. Uncertainty ............................................ 7 2. Failure to Please with Specificity .................................................... 8 3 Failure to State a Cause of Action .................................................. 8 . a. The Allegations Relating to Letter of Counsel Sent in 2017 Are Insufficient to Revive the Claim ................ 10 C. Second Cause of Action: Deceit ............................................................. 12 D. Third Cause of Action: Breach of Fiduciary Duty .................................... 12 1. Uncertainty ................................................................................... 12 2. Fails to State a Claim ................................................................... 12 E. Fourth Cause of Action: Breach of Contract ........................................... 12 1. Uncertainty ................................................................................... 12 2. Fails to State a Claim .............................................. ’ ..................... 13 F. Fifth Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing ..................... ‘ ................................................................. 13 1. Uncertainty .............................................................. ' ..................... 13 2.‘ Fails to State a Claim .............................................................. 14 G. Sixth and Seventh Causes of Action: Money Had and Received and Unjust Enrichment ............................................................................ 14 H. Eighth Cause of Action: Declaratory Relief ............................................ 15 1. Uncertainty ................................................................................... 15 V. Conclusion .................................................................................... ' ..................... 15 2 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Apollo Capital Fund, LLC v. Roth Capital Paflners, LLC (2007) 158 Cal.App.4th 226 ................................................................................. 8 B & P Development Corp. v. City of Saratoga ‘ (1986) 185 Cal.App.3d 949 ................................... 5 Barnett v. Fireman’s Fund Ins. Co. (2001)90 Cal.App.4th 500 .................................................................. 5 Blank v. Kirwan - 1985) 39 Cal.3d 311 .......................... 6 Cad/o v. Owens-Illinois, Inc. _ (2004) 125 Cal.App.4th 513 ........................................................................... 8, 10 Campbell V. Rayburn (1954) 129 Cal.App.2d 232 .................................................................................. 7 Craig v. City of Los Angeles - , (1941) 44 Cal.App.2d 71 ...................................................................................... 7 Creditor’s Collection Service v. Castaldi (1996) 38 Cal.App.4th 1039 ........................... ‘ .................................................... 15 Gil v. Bank ofAmerica, Nat. Ass’n (2006) 138 Cal.App.4th 1371 ........................... ............................. 8, 1O Fuller v. First Franklin Financial Corp. - (2013) 216 Cal.App.4th 955 .............. . ................................................................. 12 Goodman v. Kennedy (1976) 18 Cal.3d 335 ......................................................................................... 11 Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 ........................................................................................ 14 Johnson v. County of Los Angeles ' (1983) 143 Cal.App.3d 298 .................................................................................. 6 Lazar v,. Sup. 'Ct. (1996) 12 Cal.4th 631 ........................................................................................ 10 Leet v. Union Pac. R. Co. (1945) 25 Cal.2d 605 ........................................................................................... 7 3 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Richardson v. Allstate Ins. Co. 1980) 117 Cal.App.3d 8 ..................................................................................... 14 Serrano v. Priest ‘ (1971) 5 Ca.3d 584 .................................................. I ............................................ 5 Service by Medallion, Inc. v. Clorox Co. V (1996) 44 Cal.App.4th 1807 ............................................................................... 1O Small v. Fritz Companies, Inc. (2003) 30 Cal.App.4th 167 ................................................................................. 12 Starzynski v. Capital Public Radio Inc. (2001) 88 Cal.App.4th 33 ................................................................................... 14 Wilhelm v. Pray. Price. Williams & Russell ~ (1986) 186 Cal.App.3d 1324 .............................................................................. 11 Statutes Code of Civil Procedure section 338 ........................................................................ 8, 12 Code of Civil Procedure section 339 ............................................................................ 14 Code of Civil Procedure section 425.10 ......................................................................... 6 Code of Civil Procedure Section 430.10 ................................................................... 6 Code of Civil Procedure section 430.50 ......................................................................... 6 Rules of Court California Rules of Court, Rule 2.1 12 ............................................................................. 7 4 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT .10‘ 11 12 13 14 15 16 17 18 19 20 21 zé 23 24 25 26 27 28 l. INTRODUCTION This case arises out of a dispute among related entities and their managing and limited partners. Specifically, in 2015, Plaintiff Brett Weisel made a distribution of profits from an investment to three entities. He then claims that he discovered the same day that ‘one of the entities, Defendant CA Opportunity Fund Ill LP, was over distributed. He then alleges that Defendant David Lichtenger refused to re-distrib-ute the profits that were allegedly overpaid, and makes other allegations that'Lichtenger frustrated the repayment for approximately four years. The complaint is subject to demurrer on several grounds. First, it is u‘ncertain in that it lumps all plaintiffs and all defendants together, and makes no effort to distinguish the claims among the parties, rendering it uncertain. Second, the crux of the complaint and the alleged damage to plaintiffs rests on this 201 5 alleged overpayment and subsequent refusal to repay the monies. These claims are time barred. Third, the complaint and the Causes of action therein further fail to state a claim upon which relief may, be granted in that there is no correlation to the actions complained of and any damage sustained by plaintiffs. Therefore the demurrer to the Complaint, and to each cause of action therein, should be sustained without leave to amend. ll. STATEMENT 0F FACTS For purposes of testing the sufficiency of a cause of action on demurrer, all material facts are admitted as true. Serrano v. Priest (1971) 5 Ca|.3d 584, 591. “l.n evaluating a demurrer, we assume the truth of all material facts properly pleaded in the complaint unless they are contradicted by facts judicially noticed but no such credit is given to pleaded contentions or legal conclusions.” B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953 (citations omitted). “Additionally, to the - extent the factual allegations conflict With the content of the exhibits to the complaint, [courts] rely on and accept as true the contents of the exhibits ahd treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.” Barnett v. Fireman's 5 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT '10 11 12- 13 14 15 16 17 _ 18 '19 20 21 22 23 24 25 26 27 28 Fund Ins. Co. (2001) 90 Cal.App.4th 500, 504-05. Accordingly, Defendants incorporate by this reference the factual allegations set forth in the Complaint for the purposes of demurrer only. Ill. STANDARD OF REVIEW A demurrer may challenge the entire pleading or any cause of action therein. Code of Civil Procedure section 430.50. Pursuant to Code Civ. Proc. §430.10(e), pleadings that do not state facts sufficient to constitute a cause Of action may be challenged by general demurrer. A general demurrer serves to test the sufficiency of the complaint as a matter of law, and it raises only questions of law. Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 306. Additionally, a pleading may be subject to special demurrer if it is uncertain, ambiguous or unintelligible. Code Civ. Proc. §430.10(f). A demurrer must be sustained without leave to amend absent a showing by the plaintiff that a reasonable possibility exists that the defect in the pleadings can be’ cured by amendment. Blank v. Kirwan (1985) 39 Ca|.3d 31 1, 318. The burden of proving such reasonable possibility rests with the plaintiff. Id. IV. LEGAL ARGUMENT ' A. The Complaint. And Each Cause Of Action Therein, Fails Because It ls Uncertain. The complaint is filed on behalf of three parties, CA Residential Opportunity Fund LP (“CROF l”), CA Residential Opportunity Fund |l LP (“CROF II”), and Brett Thomas Weisel (“Weisel”), against two parties, David Howard Lichtenger (“Lichtenger”) and CA Residential Opportunity Fund ||| LP (“CROF _l||”). However, the causes of action make no effort to distinguish which cause of action is brought by which‘plaintiff, and against which defendant. I Pursuant to Code Civ. Proc. §425.10, a complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” The court in Strongman v. County of Kern (1967) 255 Cal.App.2d 308, further explains this standard 6 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for pleadings: It is a fundamental principle of pleading that a complaint must clearly and distinctly state the ultimate facts relied on, so that the court may fully understand the issues, so that the defendant may be apprised of the nature, source, and extent of the Plaintiff’s cause of action, and so that the defendant may not be taken by surprise, may plead to the issues, and may plead the judgment in bar of a subsequent action. Id. Courts require “fairness in pleading to give the defendant such notice by the complaint that he may prepare his case." Leet v. Union Pac. R. Co. (1945) 25 Cal.2d 605, 619. Where a complaint “attempts to state numerous causes of action in a very loose and rambling manner without any attempt at separately stating them," a demurrer for uncertainty should be sustained. Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73; see Campbell v. Rayburn, (1954) 129 Cal.App.2d 232, 235 (special demurrer was ’properly sustained because the complaint was defective in that two purported causes of action were not separately stated); California Rules of Court, Rule 2.1 12 (each cause of action must be separately stated and numbered). As currently pled, it is impossible to ascertain what specific misconduct oerauses of action are alleged as against each Defendant and by which Plaintiff, or the nature of the legal theory or theories underlying each claim. See Complaint, generally. Defendants should not be required to guess what possible causes of action may be asserted through Plaintiffs’ Complaint and in‘cur costs to defend against such uncertain claims throughout this litigation. See Craig, supra, 44 Cal.App.2d at 73; Campbell, supra, .129 Cal.App.2d at 235. Because Plaintiffs’ allegations are so clouded and confusing that they do not sufficiently apprise Defendants of the allegations to which they must respond, every cause action fails for uncertainty. This issue will be further addressed specifically as to each cause of action below. B. First Cause of Action: Fraud 1. Uncertainty. The first cause of action for fraud alleges that “all defendants" made material misrepresentations of fact. However, it is uncertain which allegations relate to which 7 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT‘OF DEMURRER TO COMPLAINT 1O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff and which defendant. For this reason it is subject to'a special demurrer for uncertainty. 2. Failure to Plead with Specificity The essential elements of fraud are: (1) misrepresentation of a material fact; (2) knowledge of the falsity of the misrepresentation, (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages. Cadlo v. Owens- /l/inois, Inc. (2004) 125 Cal.App.4th 513, 519. The pleading requirements for fraud allegations are more stringent than general pleading requirements. “Fraud allegations must be pled with more detail than other causes of action. The facts constituting the fraud, including every element of the cause of action, must be alleged factually and specifically.” Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 240; see also Gil v. Bank ofAmerica, Nat. Ass’n (2006) 138 Cal.App.4th 1371, 1381; Cadlo, supra, 125 Cal.App.4th at 519 (“The policy of-liberal construction of pleadings is not generally invoked to sustain a misrepresentation pleading defective in any material respect”) (internal citation Omitted). The purpose of the specificity requirement is to gives notice to the defendant of the charges against him and, “to permit the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” Id. 3. h Failure to State a Cause of Action. I A general demurrer for failure to state a cause of action lies where a claim is barred by the applicable statute of limitations; The statute of limitations for fraud is three years. Code Civ. Proc. §338. The complaint alleges that Plaintiff Weisel made alleged “overpayments” to Defendant CROF ||| on October 8, 2015. Complaint at 22. The complaint further alleged that Lichtenger distributed the alleged overpayments “to certain specific investors, including members of his own family...." Complaint at 22. The Complaint also states that “in a conversation with Weisel on October 8, 201 5, Mr. Lichtenger agreed to talk to CROF Ill investors to whom he had given portions of the Overpayment about returning such funds for repayment to the other CROFF entities.” 8 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint at 22. In short, Weisel knew as of October 8, 2015 that he had made the alleged overpayments, had discussed the issue with Defendant Lichtenger and specifically about return of the funds. In fact, the complaint alleges that this fact is confirmed in an email sent “that same day.” Complaint at 22. The complaint then details Lichtenger’s alleged refusel to return the “overpayment.” In fact, it states that “Weisel has repeatedly and consistently requested return of the funds mistakenly paid to CROF ||| since October 2015” and that “Lichtenger has, without any substantive explanation, consistently obfuscated and delayed Weis'el’s efforts to collect the Overpayment for CROF l & ||....” Complaint at 25. In fact, the “consistent obfuscation and delay” is alleged to have been (1) threats to “sabotage” the joint representation of the CROF entities in an arbitration proceeding (Complaint at 25); ‘ (2) threatened to require other funds be put in a trust until all parties agreed on distribution percentages (Complaint at 25); (3) causing CROF ||| “to take unilateral ‘ actions without consulting or notifying Weisel (Complaint at ‘27); (4) not providing transparency to CROF Ill investors (Complaint at 27); (5) engaging in improprieties with CROF Ill’s money; (6) agreed to hire an accountant to audit CROF Ill’s funds and its investments in another entity known as HPROF, but subsequently failed to authorize such hiring (Complaint at 27); (7) agreed to speak with an accountant proposed by Weisel regarding‘the alleged overpayments (Complaint at 29); (8) perform a “corporate coup d’état, completely removing Weisel as manager and taking control Of CROF Ill for himself” (Complaint at 31); and (9) refusing to participate in mediatipn to resolve the dispute, and then agreeing to do so “once Plaintiffs had completed an audit” and then, once the audit was conducted, “refusing to participate in mediation without a precondition.” (Complaint at 51 and 52). To state a cause of action for fraud, the complaint must allege: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knOW'edge 0f falsity (or “scienter”); 9 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. See Lazar v. Sup. Ct. (1996) 12 Ca|.4th 631, 638. The allegations of the complaint do not contain facts that meet any of the required elements for the cause of action. Instead, the complaint sets out facts that show that ‘ Plaintiff Weisel was the one who made the alleged overpayment in October 2015, that he immediately discovered it and discussed repayment with Lichtenger in October 2015. There are no facts showing misrepresentations, but rather allegations of negotiating “in bad faith” regarding the return ofthe funds. a. The Allegations Relating To Letters Of Counsel Sent In 2017 Are Insufficient To ReviVe The Claim. The complaint also alleges that letters written by counsel hired by CROF ||| and sent to Weisel, and later to Wéisel’s counsel, contained false statements. These letters were sent in 2017. However, there are two reasons why these letters do not revive the statute of limitations. First, these allegations are the subject of a special motion to strike, filéd contemporaneously with this demurrer. In short, any effort to use these letters written by counsel are in direct violation of the SLAPP statutes and must be struck from the complaint. . As a second and independent ground, there are no facts to show that these letters were justifiably relied upon by Plaintiffs or that such reliance caused harm. Gil v. Bank of America, Nat. Ass’n (2006) 138 Cal.App.4th 1371, 1381 (“Every element of the cause of action for fraud must be alle‘ged in the proper manner (i.e. factually and specifically); Cadlo, supra, 125 Cal.App.4th 513‘ at 519 (for the element of reasonable orjustifiable reliance, “the mere assertion of ‘reliance’ is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show _a bona fide claim of actual reliance”; See Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th ‘ 1O ‘DEFENDANTS'MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 ‘23 24 25 26 27 28 1807', 1818 (A party claiming damage from fraud must plead and prove, “detriment proximately caused” by the alleged fraudulent conduct; “Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.”) Instead, Weisel alleges that he was represented by counsel who, on April 5, 2017, sent a letter to Lichtenger’s counsel “stating that Lichtenger’s refuse! to provide the information requested was unacceptable and that the purported removal was improper, unlawful, and ineffective.” (Complaint at 35.) In Wilhelm v. Pray. Price. Williams & Russell (1986) 186 Calv. App. 3d 1324, plaintiff, a non-client of defendant law firm, attempted to allege a fraud cause of action against one of the defendant attorneys for statements the attorney made to plaintiff's conservatee. The court sustained the attorney defendant's demurrer to the fraud cause of action without leave to amend, struck the request for punitive damages and awarded sanctions against the plaintiff and in favor of the attorney because plaintiff had failed, after being giveh several opportunities to so, to allege facts showing actual and justifiable relianceQThe court found there could be no actual reliance because plaintiff was represented by counsel. See Id. at 1330-1332; see also Goodman v. Kennedy (1976) 18 Cal. 3d 335 (sustained a demurrer by an attorney defendant to a non-client plaintiff's complaint for fraud because there was no duty owing to the plaintiff and also “an utter failure to allege any facts indicating that plaintiffs' claimed reliance was justifiable or reasonable”) Plaintiffs, represented by Rudder Law Group, are no different from the plaintiff in Wilhelm and therefore cannot justifiably rely to their detriment upon statements made by Defendants’ counsel. Consequently, the Fraud ahd Deceit causes of action fail as a > matter of law. Moreover, while the complaint claims that these “material misrepresentations” were made to “third parties, including banks and investors, to practically ensure that Weisel was barred from exercising his lawful rights to oversee and manage CROF ||| and 11 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1O 11_ 12 13 14 15 16 17 18 19 20 21 22 23 24 25- 26 27 28 its assets” (Complaint at 59), there are n9 facts showing that any third party relied on those “misrepresentations” which in turn caused damage to Plaintiffs. C. Second Cause of Action: Deceit The elements of a cause of action for deceit are the same as those for fraud. See Small v. Fritz Companies, Inc. (2003) 30 Cal.4”‘ 167, 173. The same three-year statute of limitations applies to a claim for deceit. Code Civ. Prbc. §338. For all of the reasons set forth in section B above, the second cause of action is Subject to special and general demurrer. D. Third Cause of Action: Breach of Fiduciary Dutv‘ 1. Uncertainty The allegations of breach of fiduciary duty are again lumped together, making no distinction between the parties. It is not alleged which defendant owed which plaintiff a fiduciary duty and why. 2'. Fails to State a Claim. ‘_ Second, to the extent the cause of action relies upon the allegations of misrepresentations made by Defendants, the claim is bérred by the thfee-year statute of limitations. See Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 963 (holding that, where the “gravamen of the claim is deceit” the three-year statute of limitations applies to a bréach of fiduciary duty claim). ‘ E. Fourth Cause of Action: Breach of Contract 1. Uncertainty. The fourth cause of action for breach of contract is based upon three separate contracts: the CROF ||| LPA, the 2011 “Amended and Restated Agreément" and the Operating Agreement for Gulf Reo, LLC. But not all of the parties to the complaint are parties to the contracts. The CROF ||| LPA is entered into between CROF ||| and executed by its general partner, Integrity Homes LP and its managers Lichtenger and Weisel (See Complaint at Exh. K); the 2011 Amended and Restated Agreement is entered into between CROF l, CROF ||, CROF III and Montgomery Partners, Inc. (See 12 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO_COMPLAINT 1O 11 12 13 _ 14 15 16 17 18 19 207 21 22 23 24 25 26 27 28 Complaint at Exh. L); and the Operating Agreement for Gulf Reo LLC is entered into between an individual named Andy Garrett, CROF I, CROF || and CROF lll. This renders the claim uncertain. Moreover, the cause of action lumps together in a claim alleged breaches'of three different agreements, which makes it impossible to understand, rendering it unintelligible. 2. Fails to State a Claim Additionally, as set forth above, the exhibits attached which constitute the contracts alleged to have been breached show that Lichtenger did not enter into two of the agreements (the 2011 Amended and Restated Agreement and the Operating Agreement for Gulf Reo LLC) and therefore this cause of action rhust fail as against him. Moreover, Weisel is not a party to the agreements either, and therefore he may not seek relief. (Steinberg v. Buchman (1946) 73 Cal.App.2d 605, 609.) The allegations also do not appear to rise to the level of a breach of contract. The cause of action relies on claims that Defendants “refused to accept” their share of losses from the joint venture entities. Yet, there is no explanation of how this “refusal to accept losses” is a breach of any of the three contracts. These allegations do not indicate any actual “breach” of contract, particularly in light of the fact that the Complaint admits that the overpayments at issue were made by Plaintiff himself. Finally, the claim that CROF ||| and Lichtenger breached the CROF Ill LPA “by seeking to improperly remove CROF lll’s general partner also fails.” First, the CROF |l| general partner is alleged to have been Integrity Homes LP (See Complaint at 32), who is not a party to this case. The complaint has no allegations describing how the removal of Integrity Homes LP somehow caused damage to Weisel or CROF II, and how Weisel who is not a party to the contract can somehow seek damages for such claimed breach. F. Fifth Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing. 1. Uncertainty. Again, the wholesale lumping together of parties renders this claim ambiguous and 13 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uncertain. Given that three contracts as well as “other agreements governing the joint venture entities” are at issue, and given that there are no factual allegations as to which entities are parties to which agreements and which agreements are sought to be enforced, the claim fails. I 2. Fails to State a Claim As set forth above, the fourth cause of action for breach of contract is based upon three separate contracts. By the fifth cause of action, Plaintiffs contend that these contracts, as well as “other agreements governing the joint venture entities” contain an “implied covenant of good faith and fair dealing that neither party will take or fail to take any action that deprives the other party of the benefit of its bargain.” (Complaint at 1184.) First, to the extent this cause of action seeks tort damages separate from those available under a breach of contract claim, the claim is barred by the two-year statute of limitations. Code Civ. Proc. §339; see Richardson v. Allstate Ins. Co. (1981) 117 Cal.App.3d 8, 13. Second, to the extent this cause of action seeks damages based on the contracts idenitified in the fourth cause of action, a plaintiff cannot seek to enforce a covenaht that imposes “substantive terms and conditions beyond those to which the parties actually agreed.” Starzynski v. Capital Public Radio Inc. (2001) 88 Cal.App.4th 33, 39 (citing Guz v. Bechtel National, Inc. (2000) 24 Ca|.4th 317, 348-353). To the extent Plaintiffs seeks to impose additional terms upon the three identified agreements ‘as well as the “other agreements governing the joint venture entities” they are precluded from doing so. Moreover, to the extent Plaintiffs’ allegations are intended to mirror those claims raised by the breach of contract cause of action, such claims are superfluous. See Guz v. Bechtel National, Inc. (2000) 24 Ca|.4th 317, 352-353: In either instance, the claim is barred. G. Six and Seventh Causes of Action: Money Had and Received and Uniust Enrichment Equitable remedies disguised as stand-alone causes of action are governed by the 14 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statute of limitation that relates to the underlying claims. Here, it is clear that the Complaint seeks return of moneys allegedly paid to Defendants by fraud or mistake. (See Complaint at 1188 “Defendants received monies that belonged and were due to Plaintiffs" and 1193 “As a result ofthe breaches and unlawful and wrongful acts of Defendant, as alleged herein, Defendant have been unjustly enriched as [sic] the expense of Plaintiffs”) Accordingly, the two and three-year statute applies to time bar these claims as well. See Creditor’s Collection Service v. Castaldi (1996) 38 Cal.App.4th 1039, 1043. H. Eiqhth Cause of Action: Declaratory Relief 1. Uncertainty. As has been described throughout this pleading, the fact that the complaint makes no distinction among the various parties renders it uncertain. This is also true for the eighth cause of action for declaratory relief. It is unclear which parties rights and obligations Plaintiffs seek a declaration for. The Only dispute appears to be one between Weisel and Lichtenger (Complaint at 1l96), yet the claim is purportedly brought on behalf of all three plaintiffs against both defendants. The cause of action is therefore uncertain. V. CONCLUSION For all of the foregoing reasons, Defendants’ demur to the Complaint, and to each causeof action therein, should be sustained without leave to amend. Dated: September 26, 2019 RAGGHIANTI F5ElTAS LLP‘ ‘ ‘ l ‘ .' I ! : By: ,2 { ’ ERFC ,ST BERGER SARAH N. EGER JOSE M. HERRERA Attorneys for Defendants DAVID HOWARD LICHTENGER and CA RESIDENTIAL OPPORTUNITY FUND ||| LP 15 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORlTIES IN SUPPORT OF DEMURRER TO COMPLAINT