Heidi Pascucci et al. v. Duncan H. Cooper et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 154)

Preliminary Statement

This action is brought by three plaintiffs, beneficiaries under the terms of an irrevocable trust, against the trustees of that trust, officers and directors of certain corporations in which the trust is alleged to have a “significant ownership interest,” as well as other related entities.   In the complaint, the plaintiffs aver that on October 31, 1997, Raymond C. Schmidt signed an Irrevocable Trust Agreement and identifies the trust established thereby as simply “the trust.”   The moving defendants, Duncan Cooper, David Dickinson, Paul Omichinski, RCS I Limited Partnership and RCS II, Inc., filed a motion to strike each count of the complaint.¹  There are two additional defendants, Richard Bruce Andrews and Shelly Anderson, who did not file a motion to strike.²  Rather, Andrews and Anderson filed a motion to dismiss the plaintiffs' claims on the ground that this court lacks subject matter jurisdiction over the claims against them.   That motion is not decided herein.   For the reasons set forth below, the motion to strike is granted.

Procedural History and Factual Allegations

This is the second motion to strike the plaintiffs' complaint heard by the court.   The first was granted by agreement in light of the fact that the previous complaint failed to include any factual allegations to support the legal conclusions and liabilities asserted.   Per the Practice Book, the plaintiffs filed a new complaint in which additional allegations appeared.   The moving defendants again filed a motion to strike on the grounds, among others, that the complaint still fails to plead, as required, the elements of the causes of action asserted and/or any factual support for the legal conclusions which are included.

The plaintiffs have objected to the motion.   The written objection does not address the legal issues raised in the motion or the adequacy of the complaint in any fashion.   Rather, it contains a series of new factual allegations against the defendants which do not appear in the complaint.   It contains an argument regarding the continuing course of conduct doctrine as having tolled the statute of limitations, an issue not raised in the motion.   It contains allegations of discovery abuse by the defendants.   It argues the merits of the underlying claims.   It concludes:

As Pro Se Plaintiffs, we may not be versed in Case Law or Practice Book protocol, but it would be a travesty if the court would grant ․ a “motion to strike” ․ without allowing the Plaintiffs their due process of law and their democratic right to be heard in the United States Court of Complex Litigation in the State of Connecticut.

“[Our courts have] always been solicitous of the rights of pro se litigants and ․ will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party ․ [W]e do give great latitude to pro se litigants in order that justice may both be done and be seen to be done For justice to be done, however, any latitude given ․ cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.”  Marlow v. Starkweather, 113 Conn.App. 469, 473 (2009).   The court must construe pleadings broadly and liberally.  Hill v. Williams, 74 Conn.App. 654, 655 (2003).  “The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard regardless of their lack of legal education and experience.”  (Internal quotations omitted.)  Oliphant v. Commissioner of Correction, 274 Conn. 563, 569 (2005).

There are recognized limits to the court's latitude however.  “[T]he right of self-representation provides no attendant license not to comply with the relevant rules of procedural and substantive law.”  Id.;  Kaddah v. Commissioner of Correction, 299 Conn. 129, 140 (2010).   Furthermore, the court “cannot contort pleadings in such a way so as to strain the bounds of rational comprehension.”  Id.

The court accepts that the current complaint was a good faith effort on the part of the plaintiffs, who clearly struggle with the procedural and substantive aspects of the case, to cure the previous complaint's deficiencies.   Unfortunately, it simply fails in that regard.   To construe the complaint as adequately setting forth a plain and concise statement of the facts upon which the pleader relies or even a cogent recitation of the nature of the factual allegations being made, would require the court to contort the pleadings in such a way as to not only strain but to break the bounds of rational comprehension.   The allegations are, in some cases entirely conclusory and in others, factually incomprehensible in the context in which they are found.³

Standard of Review

The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading.  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)   Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).

The court is limited “to a consideration of the facts alleged in the complaint.   A speaking motion to strike (one imparting facts outside the pleadings) will not be granted.” ⁴  Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn. 845 (1996).   For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc., supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”  Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).

Count One—Breach of Fiduciary Duty

In order to set forth a claim of breach of fiduciary duty, the plaintiffs must allege:  (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendants to the plaintiffs, (b) an obligation on the part of the defendants to act in the best interests of the plaintiffs, and (c) an obligation on the part of the defendants to act in good faith in matters related to the plaintiffs;  (2) That the defendants breached these obligations by advancing their own interests to the detriment of the plaintiffs;  (3) That the plaintiffs sustained damages;  (4) That the damages were proximately caused by the fiduciary's breach of his or her fiduciary duty.   See, Everett v. Everett, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 10 6004013 (December 16, 2010, Adams, J.) (citing T. Merritt, 16 Connecticut Practice Series:  Elements of an Action (2010–2011 Ed.) § 8:1, p. 534).

Count one adequately sets forth that the defendants named therein were the trustees of the trust for which the plaintiffs are beneficiaries, thus establishing a fiduciary relationship and the duties and obligations set forth above.   Thereafter, the complaint identifies several topics on which the defendants “have engaged in a continuing course [sic] fraudulent misrepresentation and/or non-representation or lies,” to include the “status” of various corporate entities and their officers and directors.   The complaint alleges the defendants “operated under a veil of secrecy” and engaged in “self dealing to their own respective and collective financial benefit, and to the exclusion” of the plaintiffs.   The complaint alleges that the defendants have “failed to act in good faith with regard to their respective and collective fiduciary duties” and that as a result, the plaintiffs “have been damaged emotionally, physically, mentally and financially.”   The complaint does not identify any statement made that was false or any material omission that was kept from the plaintiffs.   The complaint does not explain any specific conduct or transaction of self-dealing or bad faith.   Although it contains broad reaching conclusory allegations of bad faith, self-dealing and other breaches of the defendants' fiduciary duties, the complaint is silent as to any specific or identifiable conduct which would support these conclusions.⁵

The motion to strike count one is GRANTED.

Count Two—Fraudulent misrepresentation

A fraudulent misrepresentation claim requires the plaintiffs to allege:  (1) that the defendants made a false representation as a statement of fact;  (2) that the defendants knew the statement to be false at the time it was made;  (3) that the statement was made in order to induce plaintiffs' reliance thereupon;  (4) that plaintiffs did in fact rely upon the statement;  and (5) as a result, the plaintiffs suffered damages.  Sturm v. Harb Development, LLC, 298 Conn. 124, 142–43 (2010);  Citino v. Redevelopment Agency of City of Hartford, 51 Conn.App. 262, 275–76 (1998).   Each element must be alleged.   The absence of even one is fatal to upholding the sufficiency of the pleading.   See, e.g. Bradley v. Oviatt, 86 Conn. 63, 67 (1912);  Kilduff v. Adams, Inc., 219 Conn. 314, 329–30 (1991).

The “fraudulent misrepresentation” alleged in count two is the defendants' assurances to the plaintiffs that “they were constantly acting in [the plaintiffs'] best interests” while at the same time making decisions which were “detrimental to the Trusts assets.”   These assurances, it is alleged, “were made ․ with the intention of preventing the [plaintiffs] from acting to their own benefit.”   There is no allegation that the plaintiffs in fact relied upon these assurances or as a result of such reliance, were injured.   Furthermore, the alleged assurances, under the circumstances pled, could not be considered statements of fact.   The complaint, as written, alleges a difference of opinion between the defendants and the plaintiffs as to whether the defendants' decisions were in the plaintiffs' best interests.   As indicated, the alleged false statement must be a statement of fact, not opinion.  Sturm v. Harb Development, LLC, 298 Conn. 124, 142–43 (2010).   This requirement “focuses on whether, under the circumstances surrounding the statement, the representation was intended and understood as one of fact as distinguished from one of opinion.”  Crowther v. Guidone, 183 Conn. 464 (1981).   See also, Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn.App. 471, 478, (2001).

The motion to strike count two is granted.

Count Three—Negligent Misrepresentation

In order to adequately allege a claim of negligent misrepresentation, the plaintiffs must allege:  (1) the defendants made false statements to the plaintiffs;  (2) the defendants were negligent insofar as they should have known that the statements were false;  (3) the plaintiffs reasonably relied upon the statements to their detriment.   See, Restatement Second of Torts § 552;  Sovereign Bank v. Licata, 116 Conn.App. 483, 502–03 (2009).

The allegations on which the plaintiffs rely for count three are largely identical to those relied upon for count two, the fraudulent misrepresentation claim.   The thrust of the claim is the negligent representation that the defendants were acting in the best interests of the plaintiffs, thus “preventing [the plaintiffs] from acting to their own benefit.”   As was the case with count two, the plaintiffs fail to allege reasonable reliance upon the assurances or injury as a result.

Further, although a cause of action for fraudulent misrepresentation differs from an action for negligent misrepresentation, a plaintiff asserting a claim under either theory must first prove a false statement of fact.  Citino v. Redevelopment Agency of City of Hartford, 51 Conn.App. 262, 275–76 (1998).   As indicated, as pled, the assurances that the defendants were acting in the plaintiffs' best interest cannot be construed as anything other than a statement of opinion.   See, Crowther v. Guidone, 183 Conn. 464 (1981).⁶

The motion to strike count three is granted.

Count Four—Civil Conspiracy

Civil Conspiracy is not an independent cause of action in tort.  Macomber v. Travelers Property and Casualty Corp., 277 Conn. 617, 636 (2006);  Larobina v. McDonald, 274 Conn. 394, 408 (2005).   A civil conspiracy claim is a mechanism for obtaining damages from those who knew about, joined in and furthered the commission of the injury producing tort.  Id. (“The essence of a civil conspiracy ․ [is] two or more persons acting together to achieve a shared goal that results in injury to another.”)   Indeed, plaintiffs must allege:  (1) a combination between two or more persons;  (2) to do an unlawful act by unlawful means;  (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of its object;  and (4) damages.   Id., 635–36.

In order to satisfy the pleading requirements of a civil conspiracy, the underlying tort which is the purported object of the conspiracy must be adequately pled.   See, Id. (“To state a cause of action, a claim for civil conspiracy must be joined with an allegation of a substantive tort”);  Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140 (2002) (same).   Here, plaintiffs incorporate counts one and two (breach of fiduciary duty and fraudulent misrepresentation) and then aver:  “16.   The [defendants] ignored or condoned by their lack of action the deliberate miss-dealings of their appointed corporate officers while granting them immunity from criminal prosecution. 17.   The conspiracy committed by, and engaged in, by the [defendants] has caused the [plaintiffs] to be damaged.”

Given the court's prior decision that neither count one nor count two are adequately pled, the additional allegations at paragraphs 16 and 17, even broadly construed, do not set forth the elements of a civil conspiracy.   The motion to strike count four is granted.

Count Five—Breach of Fiduciary Duty

This count mirrors the allegations of count one but is pursued against the moving defendants in their capacity as “officers and directors” of various entities.   It alleges that the defendants engaged in a “pattern of self dealing to their own respective and collective financial benefit and to the exclusion of” the plaintiffs.   It alleges that the defendants “failed to act in good faith with regard to their respective and collective fiduciary duties.”   For the reasons that these allegations as contained in count one are insufficient to state a cause of action for breach of fiduciary duty, so too are the allegations of count five insufficient.⁷  The motion to strike count five is granted.⁸

Count Six—Fraudulent Misrepresentation

Count six incorporates the allegations of count one but is pursued against the moving defendants in their capacity as “officers and directors” of various entities.   Here, the plaintiffs aver that the defendants represented that they were acting in the best interests of the plaintiffs and that such representations were made fraudulently with the intention of preventing the plaintiffs from acting to their own benefit.   There is no specific allegation in count six that the representation was false, that the defendants knew it was false or that the plaintiffs relied upon it.   Count six also alleges that the plaintiffs were told that “the financial documents (years 2004–2008) relating to AGC, INC and RAJON REALTY Corp. were destroyed and not available.”   However, the complaint does not allege that this statement was (a) made by the defendants (though this allegation might be reasonably inferred);  (b) was false;  (c) that the defendants knew it was false;  (d) and was a statement upon which the plaintiffs relied to their injury.   The motion to strike count six is granted.

Count Seven—Negligent Misrepresentation

Count seven incorporates the allegations of count one but is pursued against the moving defendants in their capacity as “officers and directors” of various entities.   It avers that the defendants “represented ․ that they were acting in the best interest(s) of [the plaintiffs]” and that such representations “were made negligently, preventing the [plaintiffs] from acting to their own benefit.”   Count seven does not include an allegation that the representation was false, that the defendants knew or should have known of its falsity, or that the plaintiffs reasonably relied upon it.   Count seven further alleges that “[f]rom 2008–2012 the Officers and Trustees repeatedly stated that AGC was in good financial shape and could go back to market, but through their delaying tactics and excuses, the business was not marketed for sale until 2012, when its financial condition was dire.”   It is unclear how this allegation pertains to a negligent misrepresentation claim.   It appears that the only statement referenced, the statement concerning AGC's financial shape, is alleged to have been accurate, but that other conduct, unrelated to negligent misrepresentations contributed to the depletion of AGC's assets.   It is also possible that the plaintiffs intended to allege that the statement was accurate in 2008, but not accurate in 2012—or perhaps that it was never accurate.

Regardless, nor is there any allegation of reliance upon the statement, even if it were adequately alleged to have been false.

The motion to strike count seven is granted.

Count Eight—Civil Conspiracy

Count eight incorporates the allegations of count one except is pursued against the moving defendants in their capacity as “officers and directors” of various entities.   The plaintiffs allege that the defendants represented that the defendants were acting in the plaintiffs' best interests;  that such representations were made fraudulently and with the “intention of preventing the [plaintiffs] from acting to their own benefit.”   The complaint avers that the defendants “conspired amongst themselves, as well as with others, in furtherance of their scheme to use the trust to their benefit and to the exclusion of the [plaintiffs] ․ [Para.] 17.   Using legal counsel to legitimize their actions, the [defendants] avoided directed contact with the [plaintiffs].  [Para.] 18.   The [defendants] overfunded the RCS I Trust then asked the Beneficiaries of the RCS II Irrevocable Trust to purchase an annuity to cover the deficiency.  [Para] 19.   The conspiracy committed by, and engaged in, by the [defendants] has caused the [plaintiffs] to be damaged.”

Liberally construed, the alleged conspiracy appears to be one to breach fiduciary duties and to make fraudulent misrepresentations.   However, neither of these substantive torts is adequately pled.   See, Macomber v. Travelers Property and Casualty Corp., supra.   The allegations are purely conclusory in this regard.   Paragraphs 17 and 18, quoted above, do not provide any factual basis for those conclusions.⁹  The motion to strike count eight is granted.

Count Eleven—CUTPA

Count eleven essentially incorporates all of the allegations from counts one through ten.   The plaintiffs then allege:

“53. During their continuing course of conduct the Trustees and Bruce Andrews dismissed and disregarded offers to buy AGC and maintained their control of the Trusts until they had depleted all of the assets.

54. Bruce Andrews only presented offers that maximized his personal gain.

55. There was a conflict of interest in the employment of Paul Omichinski.

56. The conduct of the Defendants is in violation of the Connecticut Unfair Trade Practices Act and as such, the [plaintiffs] are entitled to punitive damages.”

Under CGS § 42–110b(a), “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   The complaint lacks even conclusory allegations as to the elements of a CUTPA count, let alone factual support for those elements.   Further, incorporating inadequately pled substantive torts does not support a CUTPA claim.   The motion to strike count eleven is granted.

Count Twelve—Determination of Stock Ownership

This count is titled “Determination of Stock Ownership (as to AGC, Inc., Rajon Realty Corp.;   RCI I Limited Partnership;  and REC II Inc.).   It incorporates the first 12 paragraphs of count one.   The complaint then provides:

13. It is the position of the Plaintiffs that, with the passing of January 8, 2013 the trust was dissolved and their interests in the same should have converted to shares of stock.

14. The plaintiffs had demanded that their shares be issued.

15.The plaintiffs had demanded to be included in the decision(s) of the businesses in which they have an ownership.

16. The plaintiffs' requests have been denied by virtue of silence in response to the same.

17. The plaintiffs were totally unaware of an RCS Limited Partnership agreement that was presented to them for the first time in February 2013.

18. It is appropriate for this Court to make orders relative to the Plaintiffs' request for damages incurred by the Trustees, Board of Directors, and Officers for the loss of all assets pertaining to the RCS II Revocable Trust.¹⁰

The defendants construe this count as one seeking a declaratory judgment.   Given the chosen title, such a construction might be facially appealing.¹¹  Upon closer examination, to construe these allegations as a request for declaratory judgment would be to “strain the bounds of rational comprehension.”   Indeed, the court cannot identify any legal theory of liability or claim set forth in this count.   Plaintiffs' opposition was silent as to count twelve.   The motion to strike count twelve is granted.

SO ORDERED.¹²

K. Dooley

FOOTNOTES

FN1. The individual defendants, Cooper, Dickinson and Omichinski are sued in their capacity as trustees of the trust, which allegations are contained in counts one, two, three and four.   These individual defendants are also sued in their capacity as “officers and directors” of various corporate entities which comprise, at least in part, the res of the trust.   Those allegations appear in counts five, six, seven and eight.   Counts nine and ten are directed at non-moving defendants Andrews and Anderson..  FN1. The individual defendants, Cooper, Dickinson and Omichinski are sued in their capacity as trustees of the trust, which allegations are contained in counts one, two, three and four.   These individual defendants are also sued in their capacity as “officers and directors” of various corporate entities which comprise, at least in part, the res of the trust.   Those allegations appear in counts five, six, seven and eight.   Counts nine and ten are directed at non-moving defendants Andrews and Anderson.

FN2. Two additional defendants, Rajon Realty Corp. and AGC, Inc. are in bankruptcy and the proceedings are stayed as to those entities..  FN2. Two additional defendants, Rajon Realty Corp. and AGC, Inc. are in bankruptcy and the proceedings are stayed as to those entities.

FN3. It is not the court's intention to criticize or demean the plaintiffs' efforts.   The court has spent hours reading this complaint in an effort to discern the factual nature of the claims made and the basis upon which these legal theories are advanced.   Being unable to do so leaves the court little option but to grant the motion to strike..  FN3. It is not the court's intention to criticize or demean the plaintiffs' efforts.   The court has spent hours reading this complaint in an effort to discern the factual nature of the claims made and the basis upon which these legal theories are advanced.   Being unable to do so leaves the court little option but to grant the motion to strike.

FN4. The plaintiffs' opposition consists largely of allegations of events and conduct which fall outside the pleadings and must therefore be disregarded..  FN4. The plaintiffs' opposition consists largely of allegations of events and conduct which fall outside the pleadings and must therefore be disregarded.

FN5. In addition to the above allegations, the plaintiffs include, at paragraph 12, an allegation that “According to the terms of the Irrevocable Trust, RCS II, on January 8, 2013, the trust terminated and the remaining assets stock in AGC INC. and RAJON REALTY INC. were to be turned over to the Beneficiaries of the RCS II Irrevocable Trust.   Despite repeated requests by the Plaintiffs (Beneficiaries of the Irrevocable Trust) no stock certificates have ever been issued.”   In the context of count one, these allegations are incomprehensible.   Previous to this paragraph, there is no mention of the “RCS II Irrevocable Trust”;  there is no allegation that the defendants have any relationship to or responsibility for this previously unnamed trust.   The relationship, if any, between the identified trust for which plaintiffs are beneficiaries and the defendants trustees, and the RCS II Irrevocable Trust is neither alleged nor explained in any fashion.   The allegation is unclear as to what the plaintiffs refer when they make allegations regarding “the Trust,” “the trust” and “the Irrevocable Trust” or the “RCS II Irrevocable Trust.”   Each name is used within paragraph 12, yet only one, “the trust” is identifiable in the context of the complaint.   These allegations cannot therefore save an otherwise wholly conclusory and insufficiently pled breach of fiduciary duty count..  FN5. In addition to the above allegations, the plaintiffs include, at paragraph 12, an allegation that “According to the terms of the Irrevocable Trust, RCS II, on January 8, 2013, the trust terminated and the remaining assets stock in AGC INC. and RAJON REALTY INC. were to be turned over to the Beneficiaries of the RCS II Irrevocable Trust.   Despite repeated requests by the Plaintiffs (Beneficiaries of the Irrevocable Trust) no stock certificates have ever been issued.”   In the context of count one, these allegations are incomprehensible.   Previous to this paragraph, there is no mention of the “RCS II Irrevocable Trust”;  there is no allegation that the defendants have any relationship to or responsibility for this previously unnamed trust.   The relationship, if any, between the identified trust for which plaintiffs are beneficiaries and the defendants trustees, and the RCS II Irrevocable Trust is neither alleged nor explained in any fashion.   The allegation is unclear as to what the plaintiffs refer when they make allegations regarding “the Trust,” “the trust” and “the Irrevocable Trust” or the “RCS II Irrevocable Trust.”   Each name is used within paragraph 12, yet only one, “the trust” is identifiable in the context of the complaint.   These allegations cannot therefore save an otherwise wholly conclusory and insufficiently pled breach of fiduciary duty count.

FN6. Count three includes additional allegations at paragraphs 9, 10 and 11.   Paragraph 9 is nonsensical.   Any effort by this court to first construe its meaning and then analyze the allegations would be a fruitless endeavor.   Paragraphs 10 and 11 allege that “audited Financial statements as presented to the Beneficiaries from 1998–2011 were either incomplete or not provided at all.   Since the inception of the Trust the Trustee's continuing course of conduct, denied the Beneficiaries financial information.   As a result substantial assets of the Trust remain unaccounted for.”   These allegations, although internally inconsistent, could be liberally construed to allege material omissions by the defendants.   However, as with the other alleged misrepresentation, there are no allegations of reasonable reliance upon the omissions..  FN6. Count three includes additional allegations at paragraphs 9, 10 and 11.   Paragraph 9 is nonsensical.   Any effort by this court to first construe its meaning and then analyze the allegations would be a fruitless endeavor.   Paragraphs 10 and 11 allege that “audited Financial statements as presented to the Beneficiaries from 1998–2011 were either incomplete or not provided at all.   Since the inception of the Trust the Trustee's continuing course of conduct, denied the Beneficiaries financial information.   As a result substantial assets of the Trust remain unaccounted for.”   These allegations, although internally inconsistent, could be liberally construed to allege material omissions by the defendants.   However, as with the other alleged misrepresentation, there are no allegations of reasonable reliance upon the omissions.

FN7. Count five contains additional allegations to include that defendant Andrews was responsible for the loss of one third of AGC, Inc.'s business revenue (¶ 17), and that the defendants allowed Mr. Andrews to continue his employment “and his employment contract. (sic) and then were going to reward him with an outstanding bonus during the sale proceedings.” (¶ 18.)   Further, plaintiffs allege that they “were coerced into signing confidentiality agreements while company personnel had access to critical confidential information regarding AGC Inc. and Rajon Realty Corp.” (¶ 19.)   Standing alone, these allegations do not support or explain in any fashion the alleged breach of fiduciary duty..  FN7. Count five contains additional allegations to include that defendant Andrews was responsible for the loss of one third of AGC, Inc.'s business revenue (¶ 17), and that the defendants allowed Mr. Andrews to continue his employment “and his employment contract. (sic) and then were going to reward him with an outstanding bonus during the sale proceedings.” (¶ 18.)   Further, plaintiffs allege that they “were coerced into signing confidentiality agreements while company personnel had access to critical confidential information regarding AGC Inc. and Rajon Realty Corp.” (¶ 19.)   Standing alone, these allegations do not support or explain in any fashion the alleged breach of fiduciary duty.

FN8. The court does not determine whether the allegations sufficiently set forth a basis for the claim that the defendants, as “officers and directors” of certain entities, owed a fiduciary duty to the plaintiffs..  FN8. The court does not determine whether the allegations sufficiently set forth a basis for the claim that the defendants, as “officers and directors” of certain entities, owed a fiduciary duty to the plaintiffs.

FN9. With respect to paragraph 18, see footnote 5 supra, regarding the RCS II Irrevocable Trust..  FN9. With respect to paragraph 18, see footnote 5 supra, regarding the RCS II Irrevocable Trust.

FN10. See Footnote 5, supra, regarding the “RCS II Irrevocable Trust.”.  FN10. See Footnote 5, supra, regarding the “RCS II Irrevocable Trust.”

FN11. The previously complaint included a request that the court determine stock ownership as well as the rights of the plaintiffs to participate in the affairs of the business entities.   The current complaint contains no such request..  FN11. The previously complaint included a request that the court determine stock ownership as well as the rights of the plaintiffs to participate in the affairs of the business entities.   The current complaint contains no such request.

FN12. The court does not address or decide a number of arguments advanced by the defendants in the motion to strike as to do so is not necessary.   This is not to say however that those arguments are without merit.   They are simply not decided herein.   Plaintiffs should be mindful of those issues and should address them as they deem appropriate in any effort to replead..  FN12. The court does not address or decide a number of arguments advanced by the defendants in the motion to strike as to do so is not necessary.   This is not to say however that those arguments are without merit.   They are simply not decided herein.   Plaintiffs should be mindful of those issues and should address them as they deem appropriate in any effort to replead.

Dooley, Kari A., J.