Tiffany Charbonneau vs Rod Wilson et al

Case Number

25CV02364

Case Type

Hearing Date / Time

Fri, 12/12/2025 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

1) For the reasons stated herein, the demurrer of defendants to plaintiff’s complaint is sustained as to the second, third, fourth, and fifth causes of action only, with leave to amend. Except as herein sustained, the demurrer is otherwise overruled.

(2) For the reasons stated herein, the motion of defendants to strike portions of plaintiff’s complaint is granted, in part, with leave to amend. The following matters are stricken from plaintiff’s complaint: paragraph 9 in its entirety; the terms “such that their actions should be subject to an award of punitive damages” appearing in paragraphs 83 and 101 of the complaint; the terms “and should result in the imposition of punitive damages” appearing in paragraph 108.

(3) Plaintiff shall, on or before December 22, 2025, file and serve any amended complaint, which must be labeled as a first amended complaint.

Background:

The complaint filed on April 16, 2025, by plaintiff Tiffany Charbonneau (Plaintiff) against defendants Rod Wilson (Wilson), Alfred Balitzer (Balitzer), Joseph Medawar (Medawar), Jaime Villagomez (Villagomez), and Michael Raymond (Raymond) (collectively, Defendants), alleges the following:

Wilson and Balitzer, who is the father of Wilson, own Only Straight Talk Corp. (Only Straight Talk) and live together in Huntington Beach, California. (Compl., ¶¶ 3 & 15.) Wilson is also the Managing Director of Quantum X Global Management LLC (Quantum X), which is managed and operated by Villagomez. (Compl., ¶ 5.) Villagomez is also the founder and “CEO” of MyCOM and Tesora Financial Group. (Ibid.) Medawar, who resides in Pacific Palisades, is Balitzer’s business partner. (Compl., ¶¶ 3-4.) Raymond, who is Plaintiff’s stepfather, introduced Plaintiff to Wilson, Balitzer, Medawar, and Villagomez. (Compl., ¶ 6.)

From 2018 through 2021, Plaintiff earned millions of dollars through a farm where Plaintiff grew and sold cannabis. (Compl., ¶ 18.) On October 15, 2021, Plaintiff sold that farm for $3,970,000 and used some of the funds to purchase real property in Santa Barbara County. (Compl., ¶ 19.) On August 5, 2022, Plaintiff sold her personal home in Garberville, California, for $736,500 and deposited those funds in Plaintiff’s bank. (Compl., ¶ 20.)

On August 25, 2022, Raymond told Plaintiff that he knew a group of successful and sophisticated businessmen “who made millions of dollars through a number of commercial ventures...” and who could “double [Plaintiff’s] money in a short period of time [two weeks] if she gave [cash] to [Raymond] and co-defendants....” (Compl., ¶¶ 6, 15 & 21.) Raymond also promised Plaintiff that “his co-defendants would retain her services as a real estate professional to purchase real properties including wineries in Napa County and residential property in Santa Barbara County....” (Compl., ¶ 15.) On the same date, Raymond sent Plaintiff a letter from Quantum X which stated “’[t]his letter is a formal request to transfer the amount of $500,000 USD to Raymond.....” (Compl., ¶ 22.)

Raymond also forwarded to Plaintiff a letter of credit from UptoValue Asset Management (UAM) dated August 26, 2022, which stated that Quantum X had asked Raymond to verify Raymond’s relationship with UAM and that Raymond was in partnership with Quantum X whose affiliated companies maintained sufficient assets to consummate a transaction “’in excess of € 100,000,000,00.’” (Compl., ¶¶ 15 [alleging a “false” letter of credit] & 23.)

In August 2022, based on the promise that Defendants would return double the amount to Plaintiff in one week and because Plaintiff trusted Raymond, Plaintiff gave to Raymond cash in the amount of $155,000, which Raymond gave to Balitzer, Wilson, and Medawar. (Compl., ¶¶ 15 & 24.)

On August 29, 2022, Wilson and Medawar arranged to go to Napa to shop for wineries and other real properties for which they would employ Plaintiff as a real estate agent to represent them as buyers. (Compl., ¶¶ 15 [alleging visits to “real property listings”] & 26.) Wilson and Medawar sent Raymond as their “scout” to tour the wineries and claimed to Plaintiff that they would be purchasing multiple real properties including in Santa Barabara County. (Compl., ¶ 26.)

In September 2022, after Plaintiff provided Raymond with $155,000 in cash, Raymond explained that his co-defendants needed more cash to complete a project and “unlock” funds from which they would pay Plaintiff twice her deposit, and arranged for Wilson and Medawar to meet Plaintiff at her home in Santa Barbara to collect another $220,000 in cash. (Compl., ¶¶ 15 & 27-28.) On September 15, 2022, Plaintiff gave to Wilson and Medawar the $220,000 in cash. (Compl., ¶ 29.)

After Wilson contacted Plaintiff stating that Wilson and his co-defendants “’needed a little more money in order to unlock over € 100,000,000 to enable them to purchase real estate with [Plaintiff]...” and to pay Plaintiff her promised return in full, Plaintiff wired to Only Straight Talk the amount of $30,000 on September 21, 2022, and the amount of $35,000 on October 4, 2021. (Compl., ¶¶ 15 & 31-32.)

Medawar gave Plaintiff a letter dated October 10, 2022, that stated, among other things: “’Our clients are a group [sic] businessmen, bankers and investors who manage a world-wide portfolio. / They own several banks, headed by ... Villagomez, who is a licensed banker in Switzerland. Headed by Mr. Rafael Marcos Dayan, the group owns and manages hotels, major resorts and office and retail in Mexico ..., as well as 37,000 acres north of San Francisco under development. / Members include members of the Ruling Family, the Al Qasami family from RAK-United Arab Emirates, George Gillette who built out Vail, Colorado with over 37 hospitality resorts in Colorado and many other projects. The group is directed by [Wilson], Managing Director of the operations.’” (Compl., ¶ 35.) The letter also stated “... they want to add to their portfolio and invest in high end properties in the Santa Barbara – Montecito area...” and that “’[t]hey have asked ... Raymond, ...Wilson, [and Plaintiff] to visit the property....’” (Compl., ¶¶ 5 & 35.)

Also on October 10, Medawar texted a photograph of and communications with Villagomez in which Villagomez stated, among other things: “Thank you Rod and Joseph for the wonderful efforts. I look forward to moving full steam ahead with the many immediate opportunities.” (Compl., ¶ 38.)

After providing the letter dated October 10 and described above, Medawar and Raymond toured properties with Plaintiff claiming to be interested prospective purchasers. (Compl., ¶ 36.) On October 15, 2022, Plaintiff showed real properties to Medawar and Raymond. (Compl., ¶ 39.)

On October 21, 2022, Villagomez sent Plaintiff a text claiming “’[c]lient attorney has approved the IOLTA agreement and will remit back UK time tomorrow signed and will lodge wire transfer with Citibank UK tomorrow - with the plan for two outbound wires on consecutive days...’” and a text stating “’got iolta countersigned-expecting wires to start Monday [sic].’” (Compl., ¶¶ 40-41.)

On October 25, 2022, Raymond requested wire transfer information from Plaintiff to allegedly arrange for repayment, which Plaintiff provided. (Compl., ¶ 42.)

On October 26, 2022, Plaintiff discovered that Medawar was a publicly known “scam artist” who had been featured on the television show “American Greed” concerning media financing company Monaco Entertainment Enterprises (MEE), the “defrauding” of investors by Medawar, and Medawar pleading guilty to conspiracy to commit mail fraud and income tax evasion in May 2006. (Compl., ¶¶ 4 & 43.) When Plaintiff confronted Raymond regarding this discovery, Raymond responded “’[t]he past its going through cant talk Joseph is next to me.’” (Compl., ¶ 43.)

On November 1, 2022, Wilson texted to Plaintiff: “Quick Update. Everything is in, waiting on the bank to confirm and give us transfer codes which we expect soon. Once we have that will send out the money. Will keep you posted as we progress....’” (Compl., ¶¶ 44.) Later in that conversation Wilson texted “’I do not have an exact date for this. The minute I have an exact date I will confirm it with you. Everything is in place waiting on the bankers at this point.’” (Compl., ¶ 45.)

On November 2, 2022, Plaintiff participated in a call with Wilson, Medawar, Villagomez, Don Shaw, and a woman named Diva, regarding Plaintiff’s money, and together these individuals told Plaintiff that “the money was coming soon and that ... Villagomez would be providing the money.” (Compl., ¶ 47.)

Plaintiff continued to communicate with Medawar but Medawar would text “’your money is coming soon’” and then delete the text. (Compl., ¶ 48.)

Since August 2022, Plaintiff has been trying to get her money back with the promised return of double the funds, and has received only empty promises that funds are coming soon. (Compl., ¶ 49.) Plaintiff has received no return of any principal or interest, and Defendants have not purchased any properties using Plaintiff as their agent or provided any material benefit to Plaintiff to offset the funds Plaintiff gave to Defendants. (Compl., ¶ 15.)

The complaint alleges ten causes of action: (1) conversion; (2) fraud; (3) constructive fraud; (4) breach of fiduciary duty; (5) breach of contract; (6) violation of Corporations Code section 25401 (per Corporations Code section 25501); (7) “RICO” violation (18 U.S.C. § 1962(c) & (d)); (8) unjust enrichment; (9) negligence; and (10) accounting.

On June 16, 2025, Defendants filed a demurrer to the second, third, fourth, fifth, seventh, and eighth causes of action alleged in the complaint, and separately filed a motion to strike portions of the complaint. The demurrer and motion to strike, which are each opposed by Plaintiff, were set for hearing on October 10.

On October 10, after a hearing, the court entered an order continuing the hearing on Defendants’ demurrer and motion to strike to December 12. Further, the court ordered counsel for the parties to, on or before October 31, meet and confer as set forth in Code of Civil Procedure section 430.41, and ordered Defendants to, on or before November 14, file a declaration of their counsel complying with section 430.41 and stating, to the extent appropriate, what issues have been resolved by the meet and confer.

On October 29, Defendants filed a declaration of their counsel, Jerry R. Sparks, who declares that on October 28, counsel for the parties met and conferred by telephone regarding the demurrer and motion to strike and discussed the causes of action and allegations which Sparks believes are subject to demurrer and to being stricken, and legal support for the deficiencies claimed by Defendants. (Sparks Oct. 29 Decl., ¶ 3.) Sparks asserts that counsel were not able to reach an agreement regarding the objections and issues raised in the demurrer and motion to strike. (Id. at ¶ 4.)

Analysis:

As a threshold matter, the Sparks declaration filed on October 29 is sufficient to show that counsel for the parties met and conferred as set forth in Code of Civil Procedure section 430.41, and that the parties were unable to resolve the issues presented.

(1) The Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrer to the second and seventh causes of action:

The demurrer to the second and seventh causes of action for, respectively, fraud and violation of “RICO”, assert or effectively assert the same arguments. Defendants contend that Plaintiff has failed to allege with the required specificity, each of the alleged misrepresentations at issue including those which constitute a false promise, the identity of the individual defendant who made each representation, or when, where, or how each misrepresentation was made by that individual, leaving Defendants to guess as to the alleged representations giving rise to Plaintiff’s fraud claim. For these reasons, Defendants argue, the complaint fails to state facts sufficient to constitute a cause of action for fraud.

Defendants further contend that, to the extent Plaintiff has sufficiently alleged facts showing when, where, to whom, and by what means the alleged representations were made, these representations constitute, at best, predictions or opinions of what might occur in the future, or an unkept promise or failure of performance, and are not sufficient to support a claim of fraud.

As to the seventh cause of action, Defendants assert that this cause is based on the same allegations of fraud and is also insufficient for the same reasons noted above.

In the opposition, Plaintiff asserts that the specific false promises, fraudulent acts, or representations of Defendants are alleged in paragraphs 15 and 21 through 49 of the complaint, which Plaintiff contends include sufficient facts showing the dates and methods by which each communication was made by each individual defendant, and that the complaint sufficiently alleges a misrepresentation of existing material fact regarding Defendants’ liquidity to consummate a transaction, creditworthiness, and ability to purchase significant real estate, and whether Defendants were legitimate and trustworthy.

The second cause of action alleged in the complaint incorporates the allegations described above, and further alleges: “Defendants knowingly engaged in a series of false promises to [Plaintiff] including promises that [Plaintiff] would ‘double [her] money’ if she gave them cash to allow Defendants to free up hundreds of millions of dollars from which they would pay her...”; that at the time the representations were made, Defendants “knew them to be false...” and “intended to defraud [Plaintiff] by inducing her to rely” on the representations including by leveraging Plaintiff’s “confidential” relationship with Raymond; that Plaintiff relied on the representations made by Defendants; and that, as a result of that reliance, Plaintiff suffered damages of at least $440,000. (Compl., ¶¶ 55-61.)

A reasonable interpretation of the complaint, including the second cause of action described above, shows that the alleged representation at issue is an affirmative representation that Plaintiff would “double her money” if she provided the cash payments alleged in the complaint and described above. “ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).)

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.” ’ [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Lazar, supra, 12 Cal.4th at p. 645, original italics.)

Noted above, the complaint alleges that Raymond “approached” Plaintiff on August 25, 2022, and told Plaintiff that a group of successful businessmen could double Plaintiff’s funds in two weeks if Plaintiff gave Raymond cash. (Compl., ¶ 21.) Notwithstanding whether it can be reasonably inferred from this allegation that the representation at issue was made by orally by Raymond on this date, wholly absent from the complaint are any specific factual allegations showing where, how, or by what means this representation was made by Raymond. Furthermore, though the complaint alleges that Plaintiff met with Raymond at Plaintiff’s home on August 26 and gave Raymond cash based on the promise noted above, there are no allegations sufficient to show whether Raymond also made the same representation on that date, or how or by what means the representation was made.

The complaint also alleges that Plaintiff met Wilson and Medawar on September 15, 2022, at Plaintiff’s home, and gave these individuals cash based upon their promise to “double it....” (Compl., ¶ 29.) These allegations also fail to plead facts showing how, when, where, to whom, or by what means any promise to “double” Plaintiff’s money was made by Wilson and Medawar. In addition, the allegation that Wilson “then” contacted Plaintiff stating “they” needed “just a bit more money” to be able to pay Plaintiff her “promised” return also fails to plead facts sufficient to show when Wilson made this alleged statement, or how, when, where, to whom, or by what means any statement of a “promised return” was made. (See Compl., ¶ 30.)

In addition, the allegation that Villagomez “spoke with [Plaintiff] several times on the telephone in an effort to assure her that her money would be ... doubled...” is, by itself, also insufficient to show how, when, or where Villagomez made that purported misrepresentation. (See Compl., ¶ 5.)

The remaining allegations that Defendants promised Plaintiff that she would “double” her money are general and conclusory, and fail to plead, with the required specificity, facts showing how, when, where, to whom, or by what means that purported representation was made. (See, e.g., Compl., ¶¶ 1 [generally alleging that Plaintiff was promised she would “double” her money]; 6 [same]; 15 [alleging that Raymond offered the opportunity to “double” Plaintiff’s money following the sale of a commercial property].)

Also absent from the complaint are any allegations which plead facts showing how, when, where, to whom, or by what means Balitzer made any representation that Plaintiff would “double” her money.

All fraud claims “must be pleaded with specificity.” (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 132.) For all reasons further discussed above, the complaint, which includes general and conclusory allegations regarding a promise or representation by Defendants that Plaintiff would “double” her money, fails to plead facts with the specificity required to constitute a cause of action for fraud. For these reasons, the court will sustain the demurrer as to the second cause of action alleged in the complaint. As the court will sustain the demurrer to that cause of action on the grounds stated above, the court need not presently address the additional grounds raised in the demurrer.

As to the seventh cause of action, which alleges a violation of the federal Racketeer Influenced and Corrupt Organizations Act or “RICO”, codified as 18 United States Code section 1961 et seq., RICO “is aimed at ‘racketeering activity’ and to this end, among other civil and criminal remedies, creates a private cause of action for treble damages by providing ‘[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.’ [Citation.]” (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1228 (Gervase).)

“Prohibited activities under RICO are contained in title 18, United States Code, section 1962.... That section provides four categories of activity which will violate RICO and thus give rise to the civil and criminal remedies provided. [E]ach of the four categories of RICO violation is triggered by a pattern of racketeering activity. Subsection (a) prohibits using income derived from a pattern of racketeering activity to invest in, establish, or operate an enterprise which is engaged in or affects interstate commerce. Subsection (b) prohibits using a pattern of racketeering activity to acquire or maintain an interest in or control of such an enterprise. Subsection (c) prohibits using a pattern of racketeering activity in the conduct of such an enterprise’s affairs. Subsection (d) prohibits conspiring to violate the previous three subsections.” (Gervase, supra, 31 Cal.App.4th at p. 1230.)

The conduct or activity alleged in the complaint to constitute a violation of RICO includes the making of the promise or representation that Plaintiff would “double” her money as further discussed above, and “providing false banking documents, providing false joint venture letters, and lying to [Plaintiff] in order to get [Plaintiff] to transfer funds via cash and wire transfers to Defendants in furtherance of Defendants’ corrupt enterprise.” (Compl., ¶¶ 93-94.)

A “trial court ha[s] no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case. [Citations].” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) In addition, the court is not required to “consider an argument that was never made to it.” (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [also noting that “ample grounds” existed to deny a motion supported by a deficient memorandum].)

Though the court will sustain the demurrer to the second cause of action for all reasons further discussed above, Defendants fail to advance any reasoned legal or factual argument explaining why the seventh cause of action arises solely from the purportedly false misrepresentations or promises which are the subject of the second cause of action, or why the additional conduct described above fails to plead “a pattern of racketeering activity or collection of unlawful debt....” (18 U.S.C. § 1962 (a)-(d).) The failure by Defendants to show, with reasoned argument, why the additional conduct alleged in the seventh cause of action is not prohibited under RICO is sufficient grounds to overrule the demurrer to that cause of action.

Moreover, to the extent the seventh cause of action arises from conduct which is different or apart from the alleged misrepresentations or false promises which give rise to the second cause of action for fraud, “a demurrer cannot rightfully be sustained to part of a cause of action....” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 (Kong).) If the complaint states a cause of action for violation of RICO arising from that conduct, “that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane).)

As the demurrer fails to show, for all reasons discussed above, why the seventh cause of action fails to state facts sufficient to constitute a cause of action for violation of RICO, the court will overrule the demurrer to that cause of action on the grounds stated.

Demurrer to the third and fourth causes of action for, respectively constructive fraud and breach of fiduciary duty:

In their demurrer to the fourth cause of action for breach of fiduciary duty, Defendants contend that the sole confidential relationship alleged in the complaint is between Plaintiff and her stepfather Raymond, and that the complaint fails to allege the existence of any fiduciary relationship between Plaintiff and any other defendant. Defendants further contend that, because the complaint fails to allege facts sufficient to show the existence of a fiduciary relationship or duty owed by Defendants, the complaint fails to allege facts sufficient to constitute a third cause of action for constructive fraud, which Defendants also argue is not pleaded with the required specificity.

Plaintiff asserts that the complaint alleges facts sufficient to show the existence of a joint venture between Plaintiff and Defendants giving rise to fiduciary duties, and a confidential relationship between Raymond and Plaintiff, and that Defendants conspired to, or aided and abetted a, breach of those duties.

The third cause of action for constructive fraud alleges that Defendants “acted in concert with one another, and aided and abetted each other, and had a fiduciary duty to [Plaintiff]”, that Defendants asserted that “they were inviting [Plaintiff] into a joint venture from which [Plaintiff] would double her money...”, and that Defendants “breached their fiduciary duty to [Plaintiff] through nondisclosure of material facts, namely that each of the representations ... made to [Plaintiff] by Defendants, were false....” (Compl., ¶¶ 64-65.)

The fourth cause of action for breach of fiduciary duty includes similar allegations that Defendants aided and abetted a breach of fiduciary duty owed to Plaintiff “by virtue of the fact that Defendants induced [Plaintiff] into a joint venture based upon promises that [Plaintiff] would double her money given to Defendants in a short period of time...”, and that Defendants breached those fiduciary duties by “converting [Plaintiff’s] funds, committing fraud, committing constructive fraud, and otherwise not protecting [Plaintiff’s] interests ahead of their own.” (Compl., ¶¶ 71-72.)

Constructive fraud is defined under Civil Code section 1573 as “any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him” or “[i]n any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (Civ. Code, § 1573.) “The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517, fn. 14.) As with actual fraud, a cause of action for constructive fraud must be pleaded with specificity. (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 960-961.)

Relevant here, “ ‘before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law. [Citations.]’ [Citation.] ‘Fiduciary duties are imposed by law in certain technical, legal relationships such as those between partners or joint venturers [citation], ... trustees and beneficiaries, principals and agents, and attorneys and clients [citation].’ [Citation.]” (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140 (Hasso).)

A reasonable interpretation of the allegations described above show, and Plaintiff does not appear to dispute, that the fiduciary duty alleged in the complaint arises from the purported existence of a joint venture between Plaintiff and Defendants.

“A joint venture has no corporate or partnership designation. It is an undertaking by two or more persons jointly to carry out a single business enterprise for profit. [Citations.] Such a venture or undertaking may be formed by parol agreement [citation], or it may be assumed as a reasonable deduction from the acts and declarations of the parties....” (Nelson v. Abraham (1947) 29 Cal.2d 745, 749-750.) “[T]here are only three elements to show the existence of a joint venture, which are similar to a general partnership: (1) joint interest in a common business; (2) with an understanding to share profits and losses; and (3) a right to joint control.” (Jacobs v. Locatelli (2017) 8 Cal.App.5th 317, 328, fn. 10.)

The allegations of the complaint described above do not show an agreement between Plaintiff and Defendants, individually or collectively, that Plaintiff would share losses in any common business enterprise. For example, the allegations of the complaint suggest that Plaintiff instead understood that Defendants would double her money. The complaint also does not allege facts showing that Plaintiff had any right to jointly control any business enterprise carried out by Plaintiff and Defendants. For these and all further reasons discussed above, the complaint fails to allege facts showing a joint venture between Plaintiffs and Defendants, giving rise to fiduciary obligations owed by Defendants.

Plaintiff also does not appear to dispute that the fiduciary duty allegedly owed by Raymond arises from the fact that Raymond is Plaintiff’s stepfather. “A fiduciary duty under common law may arise ‘when one person enters into a confidential relationship with another.’ [Citation.]” (Hasso, supra, 227 Cal.App.4th at p. 140.)

‘The law defines a confidential relation as any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent.’ ” (Herbert v. Lankershim (1937) 9 Cal.2d 409, 483.)

A “ ‘confidential relationship’ may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. [Citations.] The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.” (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382-383.)

Though the existence of a confidential relationship giving rise to a fiduciary duty is a question of fact, the elements of a fiduciary relationship include “ ‘ “1) [t]he vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” ’ [Citations.] [¶] In short, vulnerability “is the necessary predicate of a confidential relation,” and “the law treats [it] as ‘absolutely essential”....’ [Citation.]” (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1161 (Persson).) In addition, though “a relationship need not be a fiduciary one in order to give rise to constructive fraud”, any alleged confidential relationship must be of the type that gives rise to fiduciary obligations. (Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 549; Persson, supra, 125 Cal.App.4th at p. 1162.)

Though the allegations of the complaint are sufficient to show the existence of a familial relationship between Plaintiff and Raymond, the complaint alleges no facts, apart from conclusory assertions that Plaintiff “trusted” Raymond, showing that Plaintiff was in some manner vulnerable or the “weaker” party, that Plaintiff reposed trust and confidence in Raymond, that Raymond was the “stronger” party who assumed that trust or confidence, or a superior position or confidential relationship with Plaintiff, or why Plaintiff was prevented from protecting herself. For these reasons, the complaint lacks the requisite specificity of facts sufficient to show the existence of a confidential relationship between Raymond and Plaintiff giving rise to fiduciary duties, and is conclusory. (Persson, supra, 125 Cal.App.4th at p. 1161-1162 [vulnerability is a “necessary predicate”]; see also Ampuero v. Luce (1945) 68 Cal.App.2d 811, 819 [general discussion].)

The examples offered above are intended to be illustrative but not exhaustive. Because the complaint, for all reasons discussed above, fails to plead facts sufficient to show the existence of a fiduciary or confidential relationship between Plaintiff and Defendants, the court will sustain the demurrer to the fourth cause of action for breach of fiduciary duty. Further, as the third cause of action for constructive fraud requires Plaintiff to allege facts sufficient to show the existence of a fiduciary relationship, the same reasoning and analysis apply. For the same reasons discussed above, the court will also sustain the demurrer to third cause of action for constructive fraud.

Demurrer to the fifth cause of action:

As grounds for their demurrer to the fifth cause of action for breach of contract, Defendants assert that the complaint alleges only a verbal contract to loan funds to Defendants and to receive double the amount loaned. Defendants contend that the complaint fails to allege the parties to that contract.

Defendants further contend that the allegations of the complaint show that the purported contract was breached on October 11, 2022. For this reason, Defendants argue, the first cause of action is barred by the two-year statute of limitations set forth in Code of Civil Procedure section 339.

Plaintiff asserts that the complaint sufficiently alleges an offer made by Raymond, and Plaintiff’s acceptance of that offer by conveying the amount of $440,000 to Defendants. Plaintiff also asserts that Defendants are estopped from raising the bar of the statute of limitations because Defendants repeatedly induced Plaintiff to forbear from filing the complaint by making false promises of repayment including as of the date the complaint was filed.

The fifth cause of action alleges that Plaintiff and Defendants entered into a verbal or “implied in fact” contract which is memorialized in collateral communications, and pursuant to which Plaintiff would lend funds to Defendants and receive double those funds back from Defendants within l week. (Compl., ¶¶ 76-77.) The complaint further alleges that Plaintiff performed all that was required of Plaintiff under that contract, and that Defendants breached that contract “without excuse or justification” by “failing to effectuate the purposes of the contract.” (Compl., ¶¶ 80-81.)

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.)

An action on a contract “not founded upon an instrument of writing...” is subject to a two-year statute of limitations. (Code Civ. Proc., § 339, subd. (1).) “The statute of limitations for a breach of contract claim begins to run at the time of breach (that is, when one party fails to perform as contractually required).” (Piedmont Capital Management, LLC v. McElfish (2023) 94 Cal.App.5th 961, 964.)

Though Plaintiff expressly alleges in the fifth cause of action that the contract required Defendants to return “double” the amount loaned by Plaintiff within one week, the complaint also alleges that Raymond told Plaintiff that she would receive those funds within two weeks. (Compl., ¶ 21.) For these reasons, the allegations of the complaint are insufficient to show when Defendants, or any of them, failed to perform as contractually required.

There are also no allegations to show the existence of an oral contract between Plaintiff and Wilson, Medawar, Villagomez, or Balitzer pursuant to which these individuals agreed to return Plaintiff’s funds in one week. (See, e.g., Compl., ¶¶ 25 & 46 [alleging a promise between Plaintiff and Raymond only].) For these and all further reasons discussed above, the complaint fails to show the existence of a contract between Plaintiff and all Defendants as alleged in the fifth cause of action, and is unclear as to when the parties to that contract were required but failed to perform.

Furthermore, though the complaint alleges that Defendants breached the contract by failing to return Plaintiff’s money, that Plaintiff has been trying to get her money back since August 2022, and that Plaintiff was told during a call on November 2, 2022, that the money was “coming soon”, these allegations do not show or suggest that Plaintiff deferred filing the present action based Plaintiff’s reliance on purportedly continuing representations by Defendants that they would return Plaintiff’s money. (See Getty v. Getty (1986) 187 Cal.App.3d 1159, 1171-1172 [general discussion of estoppel to assert statute of limitations where promise of payment is made].) Instead, the allegations of the complaint suggest that the final communication regarding the return of Plaintiff’s funds occurred on November 2, 2022. (See Compl., ¶ 47.)

For all reasons discussed above, the complaint fails to allege facts sufficient to state a cause of action for breach of contract. Therefore, the court will sustain the demurrer to the fifth cause of action.

Demurrer to the eighth cause of action:

As to the eighth cause of action for unjust enrichment, Defendants assert that unjust enrichment is synonymous with the remedy of restitution for which no independent cause of action exists.

As Defendants appear to concede, “ ‘[u]njust enrichment is not a cause of action.’ It is ‘just a restitution claim.’ [Citation.]” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) Further, unjust enrichment “is ‘ “a general principle, underlying various legal doctrines and remedies,” ’ rather than a remedy itself. [Citation.]” (Cameron v. Evans Securities Corp. (1931) 119 Cal.App. 164, 172; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [also noting that unjust enrichment is “synonymous with restitution”].)

Apart from arguing that the eighth cause of action unjust enrichment is not a cause of action, Defendants fails to explain, with reasoned argument, why Plaintiff is not entitled to restitution based on the allegations or causes of action alleged in the complaint, which also includes causes of action for conversion and violation of the Corporations Code, or why these claims or causes of action cannot support a restitution claim. (See, e.g., Compl., ¶¶ 50-54, 84-88 & 89-95; Quelimane, supra, 19 Cal.4th at p. 38.) In addition, and as further discussed above, to the extent the demurrer to the eighth cause of action is directed only to a type of damage or remedy sought by Plaintiff, it “cannot rightfully be sustained....” (Kong, supra, 108 Cal.App.4th at p. 1047.)

Even if a pleading “prays for relief to which the [pleader] is not entitled, or fails to seek the proper relief,” is it nevertheless good against a general demurrer “if it pleads facts sufficient to show that the pleader is entitled to some equitable relief.” (Woodley v. Woodley (1941) 47 Cal.App.2d 188, 190-191; see also Moropoulos v. C.H. & O.B. Fuller Co. (1921) 186 Cal. 679, 688 [“the fact that plaintiff has prayed for ... relief to which he may not be entitled does not affect the sufficiency of his complaint”].) For these and all further reasons discussed above, the court will overrule the demurrer to the eighth cause of action alleged in the complaint.

Demurrer to the purported civil conspiracy alleged in the complaint:

To the extent the demurrer is directed to allegations purporting to show the existence of a civil conspiracy by Defendants, the court notes that “[n]o cause of action exists for the conspiracy itself. “ (117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649.) Instead, “[a] civil conspiracy is simply a corrupt agreement; it is: [¶] ‘. . . a combination of two or more persons to accomplish an evil or unlawful purpose.’ [Citation.]” (Ibid. [also noting that a conspiracy does not give rise to a cause of action unless damage has resulted from a civil wrong].)

“ ‘ “To state a cause of action for conspiracy, the complaint must allege (1) the formation and operation of the conspiracy, (2) the wrongful act or acts done pursuant thereto, and (3) the damage resulting from such act or acts. (Citations.)” [Citation.] General allegations of agreement have been held sufficient [citation], and the conspiracy averment has even been held unnecessary, providing the unlawful acts of civil wrongs are otherwise sufficiently alleged....[Citation.]’ ” (Bartley v. California Association of Realtors (1980) 115 Cal.App.3d 930, 934.)

As the complaint alleges causes of action which are not the subject of Defendants’ demurrer and which arise from allegedly wrongful acts by Defendants pursuant to a purported agreement by Defendants to accomplish those acts, the court will overrule the demurrer to the extent it is directed to the purported civil conspiracy alleged in the complaint.

Leave to amend:

As the complaint is Plaintiff’s original pleading which does not show on its face that it is incapable of amendment as to the deficiencies discussed herein, the court will grant Plaintiff leave to amend. (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411-412, fn. omitted.)

(2) The Motion to Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court.” (Code Civ. Proc., § 436(a) & (b).) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

In their motion to strike, Defendants request that the court strike allegations appearing in paragraph 9 of the complaint on the grounds that Plaintiff has failed to allege facts which would support the imposition of alter ego liability on Defendants.

“A complaint must set forth the facts with sufficient precision to put the defendant on notice about what the plaintiff is complaining and what remedies are being sought. [Citation.] To recover on an alter ego theory, a plaintiff need not use the words ‘alter ego,’ but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.)

Paragraph 9 of the complaint alleges: “There is a unity of interest between [Only Straight Talk] and ... Wilson such that each acts as the alter ego of the other. Upon information and belief, there is a unity of interest between Quantum X ... and ... Wilson, ... Villagomez, and ... Medawar such that each acts as the alter ego of the other.” These allegations are conclusory, and fail to state facts sufficient to show a unity of interest and ownership between these individuals and entities, or an unjust result. For these and all further reasons discussed above, the court will grant the motion to strike paragraph 9 from the complaint.

Defendants also contend that the claim for punitive damages alleged in paragraphs 83, 101, and 108 of the complaint, and paragraph 2 of the prayer for relief, are improper because punitive damages may not be recovered for a breach of contract, unjust enrichment, or negligence.

Paragraphs 83 and 101 appear in, respectively, the fifth cause of action for breach of contract and the eighth cause of action for unjust enrichment. (Compl. at pp. 15 & 17.) These paragraphs allege that Defendants “acted with malice, oppression of [sic] fraud such that their actions should be subject to an award of punitive damages.” (Ibid.)

As to paragraph 83, punitive damages may be recovered “[i]n an action for the breach of an obligation not arising from contract....” (Civ. Code, § 3294, subd. (a).) As the fifth cause of action alleges a breach of contract, the punitive damages claimed in paragraph 83, which appear to arise from the purported breach of contract by Defendants, are not available as to that cause of action. In addition, considering that the eighth cause of action alleges a restitution claim, it appears that the punitive damages claimed in paragraph 101 with respect to this cause of action are superfluous or irrelevant to that claim. (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 [the purpose of a motion to strike “is to authorize the excision of superfluous or abusive allegations....”].) For these and all further reasons discussed above, the court will grant the motion, in part, and order the allegation “ such that their actions should be subject to an award of punitive damages” be stricken from paragraphs 83 and 101 of the complaint.
 

Paragraph 108 of the complaint appears in the ninth cause of action for negligence, and asserts that “Defendants’ conduct was ‘grossly negligent’ and should result in the imposition of punitive damages.” (Compl. at p. 108.) Even if the court were to assume without deciding that the complaint pleads facts sufficient to show gross negligence by Defendants, “ ‘[m]ere negligence, even gross negligence, is not sufficient to justify such an award.’ [Citation.]” (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) For the same reasons discussed above, the court will grant the motion as to paragraph 108, in part, and will strike the terms “and should result in the imposition of punitive damages[]” appearing in that paragraph.

Paragraph 2 of the prayer for judgment requests an award of “punitive damages due to Defendants’ conversion, fraud, constructive fraud, breach of fiduciary duty, and gross negligence....” (Compl. at p. 18.) As to this request, the motion fails to advance any reasoned legal or factual argument showing why the complaint fails to allege facts sufficient to support an award of punitive damages as to the cause of action for conversion. For these reasons, the court will deny the motion as to paragraph 2 of Plaintiff’s prayer for judgment.

The motion further asserts that paragraphs 4 and 43 of the complaint include material regarding Medawar and Medawar’s appearance in the television show “American Greed” which Defendants argue constitute hearsay, are conclusory, and irrelevant to the case.

Allegations regarding Medawar’s appearance on “American Greed”, and allegations appearing in paragraph 4 of the complaint in regard to Medawar’s residence, Medawar’s meetings with Plaintiff, Medawar holding himself out as a successful businessman, and other matters, appear essential to the claims alleged in the first, sixth, seventh, eighth, ninth, and tenth causes of action alleged in the complaint. (See, e.g., Compl., ¶¶ 50, 84, 89, 102 & 109 [incorporating these allegations by reference].) “[M]atter that is essential to a cause of action should not be struck and it is error to do so.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) For these reasons, the court will deny the motion as to paragraphs 4 and 43 of the complaint

The same reasoning and analysis apply as to the remaining allegations appearing in paragraphs 83 and 101, which assert that Defendants acted with malice, oppression, or fraud. For the same reasons noted above, the court will deny the motion as to these allegations.

Leave to amend:

“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. [Citation.] This is analogous to an order sustaining a demurrer.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) The same reasoning and analysis apply. For all reasons further discussed above, the court will grant Plaintiff leave to amend.