LBF Travel Management Corp. v. DeRosa

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 LBF TRAVEL MANAGEMENT CORP. Case No.: 20-cv-2404-MMA (AGS) and MICHAEL THOMAS, 11 NOTICE AND ORDER PROVIDING Plaintiffs, 12 TENTATIVE RULINGS RE: v. MOTION TO DISMISS AND 13 MOTION TO STRIKE AND NOTICE THOMAS DEROSA, 14 OF JOINDER Defendant. 15 [Doc. Nos. 80, 81] THOMAS DEROSA, 16 Counter-Claimant, 17 v. 18 LBF TRAVEL MANAGEMENT CORP. 19 and MICHAEL THOMAS, 20 Counter-Defendants.

21 22 THOMAS DEROSA, Third-Party Plaintiff, 23 v. 24 25 LBF TRAVEL, INC.; LBF TRAVEL HOLDINGS, LLC; MONDEE 26 HOLDINGS, LLC; MONDEE, INC.; and 27 PRASAD GUNDUMOGULA Third-Party Defendants. 28 1 On August 15, 2022, the parties in this action will appear before the Court for a 2 hearing on Third-Party Defendants’ motion to dismiss and motion to strike, along with 3 Counter-Defendants’ notice of joinder. See Doc. Nos. 80, 81. In anticipation of the 4 hearing, the Court issues the following tentative rulings: 5 MOTION TO STRIKE 6 1. The Court tentatively DENIES the motion to strike Claims 7, 9, and 12–14 7 as procedurally improper. The Court tentatively finds that amendment is timely and that 8 the Court’s prior order, see Doc. No. 52, did not limit amendment to existing claims. 9 2. The Court tentatively GRANTS the motion strike Claim 9 as waived under 10 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012). 11 MOTION TO DISMISS 12 1. The Court tentatively finds that Counter-Defendants’ request to dismiss 13 Claims 2 and 4 is not properly raised in a noticed motion to dismiss. Nonetheless, the 14 Court tentatively DENIES the request to dismiss Claims 2 and 4. The Court tentatively 15 finds that California’s “not – a – stranger” principle is in flux and its application in this 16 case is not appropriate for resolution at the motion to dismiss stage. See Fresno Motors, 17 LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1127 (9th Cir. 2014). Similarly, the 18 Court tentatively finds that the applicability of the manager’s privilege under California 19 law is an argument better suited to summary judgment. 20 2. The Court tentatively GRANTS the motion to dismiss Claim 6 only as to 21 the “usurping a corporate opportunity” theory and tentatively DENIES the motion to 22 dismiss Claim 6 as to the remaining theories. As to the “usurping a corporate 23 opportunity” theory, the Court tentatively finds any “usurped corporate opportunity” 24 belongs to LBF Travel Management Corp. and not DeRosa as an individual. As to 25 DeRosa’s remaining theories, the Court tentatively finds that, under California law, a 26 party need not owe a plaintiff a duty before it can be held liable as an aider and abettor of 27 a breach of fiduciary duty. See Neilson v. Union Bank of California, N.A., 290 F. Supp. 28 2d 1101, 1133–34 (C.D. Cal. 2003). Additionally, the Court tentatively finds that 1 DeRosa does not need to allege an underlying cause of action for concealment in order to 2 state a claim for aiding and abetting a breach of fiduciary duty. 3 3. The Court tentatively GRANTS the motion to dismiss Claim 12. The Court 4 tentatively finds that DeRosa fails to allege facts that rise to the level of “extreme and 5 outrageous” conduct under California law. See Hughes v. Pair, 209 P.3d 963, 976 (Cal. 6 2009). 7 4. The Court tentatively GRANTS the motion to dismiss Claim 13. The Court 8 tentatively finds that, under California law, “a conspiracy claim may not be asserted 9 against one who did not owe the injured party a duty[,]” Neilson, 290 F. Supp. at 1127 10 (citations omitted), and that the claim therefore fails because DeRosa does not allege 11 Third-Party Defendants owed him any duty. 12 5. The Court tentatively DENIES the motion to dismiss Claim 7. The Court 13 tentatively finds that DeRosa adequately alleges property interests that can serve as the 14 basis for a fraudulent conveyance claim under California law. Additionally, the Court 15 tentatively finds that DeRosa sufficiently pleads wrongful conduct. 16 6. The Court tentatively DENIES AS MOOT the motion to dismiss Claim 9 in 17 light of the tentative ruling on the motion to strike. 18 7. The Court tentatively DENIES the motion to dismiss Claim 11. The Court 19 tentatively finds the argument that the claim fails because it is derivative of DeRosa’s 20 prior failed claims unpersuasive given that claims tentatively survive as to Thomas 21 (Claims 1–5, 7, 8, and 10), Mondee Inc. (Claims 6 and 7), Mondee LLC (Claims 6 and 22 7), and LBF Travel, Inc. (Claim 7). 23 8. The Court tentatively DENIES the motion to dismiss Claim 14. The Court 24 tentatively finds that the law is unsettled as to whether unjust enrichment is a standalone 25 cause of action and therefore tentatively rejects Third-Party Defendants’ argument at this 26 time. However, the Court tentatively finds that this particular ruling should be without 27 prejudice to raising the issue at a later stage of the litigation. For that reason, the Court 28 tentatively declines to address the parties’ remaining arguments regarding quasi-contract 1 || and intentional misrepresentation as they too are more appropriately addressed at the 2 || merits stage. 3 The Court tentatively finds that dismissal should be with prejudice and therefore 4 || without leave to amend as to the following claims: Claim 6 to the extent it 1s premised on 5 || the “usurping a corporate opportunity” theory, Claim 12 in its entirety, and Claim 13 in 6 entirety. 7 As these rulings are tentative, the Court looks forward to the oral arguments of 8 || counsel. 9 IT IS SO ORDERED. 10 || Dated: August 10, 2022 12 HON. MICHAEL M. ANELLO 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28