Staff Report
The Alpine Sun

     EL CAJON — A list of motions by defendants REI, Paul Gonya, Kenneth Stroud and David Waitley were rejected last week by Superior Court Judge Joan Lewis, who upheld a motion by plaintiff Dartmouth Development Company.
     According to the San Diego County Superior Court tentative ruling website, Lewis ruled at the Oct. 25 hearing that Dartmouth adequately presented justification to proceed with its suit against all the defendants named and directed them to respond within 14 days.
     The suit, filed by Dartmouth Development Company, Inc., against local developers, Real Estate International, Inc. (REI-NC) and Paul Gonya, David Waitley and Kenneth Stroud, is seeking damages and other relief for common law fraud, breach of contract and accounting problems between the business partners.
     After a Sept. 16 ruling by Judge Lewis, which accepted needed amendments to the original lawsuit, REI attorney, Miles Scully said that the defendants would be filing another demurrer arguing against the validity of the charges.
    A demurrer is a written response pleading for dismissal on the point that, even if the facts alleged were true, there is no legal basis for a lawsuit, or that the complaint is unclear, or that it omits an essential element of fact. A hearing before a judge is then held to determine the validity of the demurrer.
     According to Scully, the second demurrer filed by REI sought to strike Dartmouth from the suit and to dismiss defendants Gonya, Waitley and Stroud. Scully also said that defendants will file a cross-complaint and that they could bring a motion for summary adjudication to get defendants dismissed later.
     “Our contention is that these allegations have been created with the help of a disgruntled former employee, as part of an attempt to grab all of the profits of the development rather than splitting them as the joint venture agreement requires,” he said.
     In another ruling on Oct. 25, the court stated the following: 
     “Defendants’ demurrer to the sixth cause of action of the First Amended Complaint (“FAC”) is overruled as the Court believes that Plaintiffs have adequately pled performance on their part. See, for example, FAC, Para. 20.
     “Dartmouth Development Company, Inc.’s demurrer to the FAC is sustained as a matter of law as, notwithstanding the opportunity to cure the defect, Plaintiffs have still failed to allege standing on the part of this Defendant to pursue the claims in this case. The case is dismissed as to this Plaintiff.
     “Defendant Gonya’s demurrer to the First Amended Complaint is overruled. In overruling the demurrer, the Court notes that Defendant’s argument was that Gonya was not a member of either REI or Dart-I or Dart-II or that he was a party to either operating agreement. The First Amended Complaint alleges, however, that Gonya was an officer or controlling agent of REI. The Court does not believe it can determine at the pleading stage Gonya’s role with REI.
     “Although the Court grants Defendants’ request for judicial notice, it does not appear that (1) the 2-15-98 statement of information is complete in light of the references to an attachment; and/or (2) this information was the current and correct information at the time of the events alleged in the FAC Moreover, the Court does not necessarily believe that all causes of action require that Gonya be a member of REI. 
     “Defendant Kenneth Stroud’s demurrer to the First Amended Complaint is overruled as the Court concludes that Plaintiffs have adequately stated a cause of action against this Defendant for each and every claim pled in the First Amended Complaint.
     “Defendant David Waitley’s demurrer to the First Amended Complaint is overruled. The Court notes that Waitley only argued that a fraud cause of action had not been pled against him. The Court concludes that Plaintiff’s fraud cause of action, at the pleading stage, has adequately been stated. 
     “Defendants’ motion to strike punitive damages, with the exception of the seventh cause of action for constructive trust, is denied as the Court believes that the FAC adequately states, at the pleading stage, sufficient facts to support a claim for punitive damages. The motion to strike punitive damages from the seventh cause of action is denied as no authority was cited that would support an entitlement to punitive damages on a theory of constructive trust.
     “The motion to strike attorneys’ fees is denied. Although it may ultimately be determined that any prevailing party in this action is not entitled to fee on all theories, the Court believes it premature at this time to determine the scope of the fee agreement.
     “The motion to strike Ex. G is denied. The motion to strike as to the remaining matters is denied. Defendants are directed to answer the First Amended Complaint within 14 days of this ruling.”
     The full ruling may be viewed at www.sdcourt.ca.gov case number GIC845987.

 E-mail Christy Scott