Sonya S Weinfeld vs Justin David Fox et al

Case Number

25CV01512

Case Type

Hearing Date / Time

Mon, 10/06/2025 - 10:00

Nature of Proceedings

CMC; Motion: Strike

Tentative Ruling

Sonya S. Weinfeld v. Justin David Fox, et al.

Case No. 25CV01512

           

Hearing Date: October 6, 2025                                                           

HEARING:              Motion of Defendants to Strike Portions of Complaint

ATTORNEYS:        For Plaintiff Sonya S. Weinfeld: Adam D.H. Grant, Ryan T. Koczara, Grant Shenon  

                                    For Defendants Justin David Fox and Thyne Taylor Fox Howard LLP: Frances M. O’Meara, Wood, Smith, Henning & Berman LLP

                                   

TENTATIVE RULING:

The motion of defendants Justin David Fox and Thyne Taylor Fox Howard LLP is granted to strike, with leave to amend, paragraphs 37 and 55 of the complaint of plaintiff Sonya S. Weinfeld, and is in all other respects denied. Plaintiff shall file and serve a first amended complaint on or before October 21, 2025.

Background:

As alleged in plaintiff Sonya S. Weinfeld’s complaint:

On December 6, 2021, defendants attorney Justin David Fox and his law firm Thyne Taylor Fox Howard LLP (TTFH) (collectively, defendants) commenced a joint representation of both Weinfeld and her then-boyfriend Damian Deveze to advise each of them in regard to forming a limited liability company named 792 Chelham Way, LLC (Chelham LLC). (Complaint, ¶ 9.)

According to Fox, Weinfeld and Deveze contacted Fox to form the Chelham LLC as a way for Deveze to acquire a percentage ownership interest in a single family home (the Property) that was already owned free and clear by Weinfeld. (Complaint, ¶ 9.) About a week later, on December 13, 2021, defendants completed the formation documents. (Ibid.) At the time of contacting Fox, Weinfeld and Deveze were already parties to a written agreement dated March 26, 2020, titled “Agreement and Release,” by which Weinfeld and Deveze waived any right, title or interest in the sole property of the other. (Ibid.) The Agreement and Release further specified the agreed conditions by which property by either party could become joint property of Weinfeld and Deveze. (Ibid.)

Neither Weinfeld nor Deveze had a written engagement agreement with Fox or TTFH. (Complaint, ¶ 10.) Fox stated that he would charge defendants less than $1,000. (Ibid.)

Fox learned from defendants that Weinfeld planned to contribute the entire multi-million dollar Property into Chelham LLC while Deveze would be contributing only “sweat equity.” (Complaint, ¶ 12.) Fox understood that they would be splitting ownership of Chelham LLC 35 percent for Deveze and 65 percent for Weinfeld, with a plan to make it evenly split over a few years. (Ibid.)

After all of the written work was completed and delivered to Deveze, on December 13, 2021, defendants sent a potential waiver of conflict letter to defendants. (Complaint, ¶ 13.)

Fox failed to disclose to Weinfeld that the contribution of the Property into Chelham LLC with a 35 percent interest to Deveze would have potentially significant gift tax consequences. (Complaint, ¶ 17.)

At the behest of Deveze, Fox created a sham operating agreement to show 100 percent ownership of the Property by Weinfeld as a ruse to avoid any red flags by the Recorder’s Office. (Complaint, ¶ 18.) After Fox committed the ruse on the Recorder’s Office, a new operating agreement was drafted with the proper membership ownership. (Ibid.)

Fox also prepared a Transfer Tax Affidavit (TTA) in which Fox falsely declared under penalty of perjury that no transfer tax was due because the transfer into the LLC would result in the transferor and transferee owning the same proportionate interest as before the transfer. (Complaint, ¶ 19.)

After the transfer of interests in the Property, Weinfeld was forced to spend millions of dollars in purchasing back the interests in the Property and in attorney fees and costs. (Complaint, ¶ 20.)

On March 3, 2025, Weinfeld filed the complaint in this action asserting six causes of action: (1) professional negligence; (2) breach of fiduciary duty; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) concealment; and (6) deceit.

On June 5, 2025, defendants filed their motion to strike from the complaint allegations and the prayer for punitive damages. Also on June 5, defendants filed their answer to the complaint, generally denying the allegations thereof and asserting 35 affirmative defenses.

The motion to strike is opposed by Weinfeld.

Analysis:

As an initial matter, Weinfeld argues in opposition that the motion should be denied as untimely. There is a factual dispute between the parties as to the scope of stipulations to extend time to respond to the complaint, and hence whether the motion to strike is timely. (See Dreblow decl., ¶¶ 6-8; O’Meara decl., ¶ 2.) Regardless of whether the motion to strike is actually untimely, the court exercises its discretion to rule on the merits of the fully opposed motion.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)

“As used in this section, the following definitions shall apply:

“(1)      ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

“(2)      ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

“(3)      ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c).)

Weinfeld’s third cause of action is for intentional misrepresentation. Weinfeld alleges:

“To induce Plaintiff to use Defendants’ services, Defendants represented to Plaintiff that they could concurrently represent the interests of Plaintiff and Deveze without an actual conflict of interest, particularly given that Plaintiff would be contributing the real property, but only receiving a fractional member interest in the Chelham LLC. Defendants falsely represented that the formation of the Chelham LLC could be effectuated without posing substantial financial liability to Plaintiff. Defendants also falsely represented that submitting false and misleading financial information to the pertinent taxing authorities was proper and legal.” (Complaint, ¶ 39.)

Weinfeld further alleges that these facts were known by Fox to be false. (Complaint, ¶¶ 40-42.)

These are sufficient allegations of an intentional misrepresentation of facts known to the defendants with the intention of depriving Weinfeld of property, namely, the amounts paid to defendants. Weinfeld has sufficiently alleged a claim for punitive damages based upon intentional misrepresentation. The motion to strike will be denied as to paragraph 46 of the complaint.

Weinfeld’s fifth cause of action is for concealment. Weinfeld alleges:

“Defendants failed to disclose material facts to Plaintiff in order to induce her to

proceed with the formation of the Chelham LLC in the manner proposed, including that Defendants could perform said legal services concurrently for both Plaintiff and Deveze without an actual conflict of interest, that the proposed contribution of real property in exchange for a fractional member interest would not pose significant adverse financial outcomes for Plaintiff, and that in order to proceed as proposed, Defendants intended to make false and misleading statements of fact to pertinent taxing authorities, further exposing Plaintiff to potential penalties and adverse financial consequences.” (Complaint, ¶ 57.)

For the same reasons as with the third cause of action, Weinfeld has sufficiently alleged a claim for punitive damages based upon fraud by concealment. The motion to strike will be denied as to paragraph 65 of the complaint.

Weinfeld’s sixth cause of action is for deceit under Civil Code section 1709.

“One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” (Civ. Code, § 1709.)

“A deceit, within the meaning of the last section, is either:

“1.       The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

“2.       The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

“3.       The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,

“4.       A promise, made without any intention of performing it.” (Civ. Code, § 1710.)

Here, the cause of action for deceit under Civil Code section 1709 is duplicative of the third and fifth causes of action. (See Complaint, ¶ 68.) While it is unclear what this cause of action is intended to add to the complaint, the duplication demonstrates that the claim for punitive damages is sufficiently pleaded by the same allegations pleaded for those causes of action. (See Complaint, ¶ 66.) The motion to strike will be denied as to paragraph 71 of the complaint.

Weinfeld’s fourth cause of action is for negligent misrepresentation. Weinfeld alleges: “Even if Defendants may have honestly believed the representations were true when made, they had no reasonable grounds for believing them to be true.”

Because the allegations for negligent misrepresentation are based upon non-intentional conduct, these allegations are insufficient to support a claim of negligent misrepresentation based upon fraud as defined in section 3294.

“ ‘ “The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” ’ [Citation.]” (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 455.)

Similarly, the allegations of negligent misrepresentations are insufficient to meet the statutory standards for malice or oppression. The motion will be granted as to paragraph 55 of the complaint.

Weinfeld’s second cause of action is for breach of fiduciary duty.

“ ‘[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] The wrongdoer “must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff’s rights [citations].” Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.’ ” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287, citation omitted.)

The breach of fiduciary duty alleged in this cause of action are violations of Business and Professions Code section 6148 requiring a written engagement letter, violating conflict of interest rules by not having informed written consent, and for creating, signing, and filing false documents to avoid transfer taxes. (Complaint, ¶¶ 30-34.)

These allegations do not constitute fraud within the meaning of section 3294, subdivision (c)(3) because they do not show misrepresentations to Weinfeld with the intent of causing injury to Weinfeld (as, for example, is set forth in the third cause of action). With respect to malice and oppression within the meaning of section 3294, subdivision (c)(1) and (2), the allegations do not sufficiently allege “conscious disregard.” Allegations that, contrary to his professional obligations, Fox did not advise Weinfeld about tax consequences do not establish a conscious disregard of Weinfeld’s rights. The allegations of the ruse as to Recorder’s Office and the false TTA constitutes despicable conduct, but again the allegations are insufficient to show conscious disregard of Weinfeld’s rights (as opposed to rights of the tax authorities). In addition, there are no allegations that the false filings actually harmed Weinfeld. Similarly, although there are allegations that certain actions were one at the behest of Deveze, the allegations are insufficient to show a breach of the duty of loyalty in conscious disregard of Weinfeld’s rights (as opposed to Fox merely falling below the standard of care for a lawyer).

The motion to strike will be granted as to paragraph 37 of the complaint.

This is the first motion addressing the pleadings. The court will grant leave to amend.