Sunday's Child, LLC et al v. Irongate Azrep BW LLC et al
ORDER DENYING DEFENDANT IRONGATE AZREP BW LLC'S 48 MOTION TO DISMISS COUNTS III, IV, V, VI AND VII OF PLAINTIFFS' COMPLAINT. Signed by JUDGE DERRICK K. WATSON on 2/10/2017. - Irongate's Motion to Dismiss is D ENIED as to Counts III and V. The Motion to Dismiss is DENIED AS MOOT with respect to Counts IV, VI, and VII, which were dismissed by the Courts prior order. See Dkt. No. 22. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
SUNDAY’S CHILD, LLC,
SUNDAY’S THIRD CHILD, LLC,
SUNDAY’S FOURTH CHILD, LLC,
and SUNDAY’S FIFTH CHILD, LLC,
CIVIL NO. 13-00502 DKW-RLP
ORDER DENYING DEFENDANT
IRONGATE AZREP BW LLC’S
MOTION TO DISMISS COUNTS III,
IV, V, VI AND VII OF PLAINTIFFS’
IRONGATE AZREP BW LLC,
ORDER DENYING DEFENDANT IRONGATE AZREP BW LLC’S
MOTION TO DISMISS COUNTS III, IV, V, VI AND VII
OF PLAINTIFFS’ COMPLAINT
The Sunday’s Companies 1 allege various state-law claims arising out of the
purchase of condominium units from developer and seller Irongate AZREP BW
LLC (“Irongate”). Irongate seeks dismissal of the claims for conversion and unjust
enrichment because they are redundant of the facts and duties at issue in Plaintiffs’
breach of contract claims. According to Irongate, the Sunday’s Companies have an
The Court refers to the four Plaintiff LLCs collectively as the “Sunday’s Companies.” They are
Sunday’s Child, LLC; Sunday’s Third Child, LLC; Sunday’s Fourth Child, LLC; and Sunday’s
Fifth Child, LLC.
adequate remedy at law through their contract claims and, therefore, neither tort
damages nor equitable remedies are available.
Although the Sunday’s Companies may not recover twice for the same injury
in contract, tort or any other theory of liability, their claims for conversion and unjust
enrichment are sufficiently alleged as alternatives to their claims for breach of
contract. Accordingly, Irongate’s Motion to Dismiss is denied with respect to
Counts III and V.
Further, because the parties agree that the Court’s previous dismissal of
Counts IV, VI, and VII is unaffected following remand from the United States Court
of Appeals for the Ninth Circuit, Irongate’s Motion to Dismiss is denied as moot as
to those claims.
The Sunday’s Companies seek to recover deposits paid under Sales Contracts
for four condominium units in the Trump International Hotel & Tower at Waikiki
Beach Walk (“Project”). Irongate, the Project’s developer, contends that it is
entitled to retain the deposits following a Settlement Agreement between the parties
and Plaintiffs’ acknowledged failure to close.
The Complaint alleges that in November 2006, the Sunday’s Companies
executed separate Sales Contracts to purchase the four Project units, advancing
twenty percent of the purchase price as a deposit to Irongate. Complaint ¶¶ 9-10.
The Sunday’s Companies’ failure to perform their contractual obligations entitled
Irongate to terminate the contract. In that event, the Sales Contracts permitted
Irongate to retain fifteen percent of the sales prices of the units with any deposit
overage being returned to the purchaser. Complaint ¶¶ 12-13.
In July 2009, a series of disputes arose between Irongate and several
purchasers, including the Sunday’s Companies. On May 13, 2011, the Sunday’s
Companies entered into a Settlement Agreement with Irongate that resolved their
dispute. Complaint ¶¶ 14-16. According to the Sunday’s Companies, the
Settlement Agreement did not modify the Sales Contracts, including Irongate’s
obligation to return any deposits exceeding fifteen percent of the sales price in the
event of termination. Complaint ¶¶ 18-19.
After executing the Settlement Agreement, changing the units to be
purchased, and making an additional $50,000 deposit, the Sunday’s Companies
were not successful in their attempts to secure financing to complete their
transaction. Unable to finance and close on the units, Irongate elected to terminate
the Sales Contracts on June 23, 2011. The Sunday’s Companies demanded that
Irongate return all deposits in excess of fifteen percent of the sales price, but
Irongate declined to do so. Complaint ¶¶ 20-26.
The Sunday’s Companies allege that Irongate breached the Sales Contracts by
failing to return the excess deposits and to release certain escrow funds to them
(Count I), and seek a declaration to the same effect (Count II). The Complaint also
asserts claims for conversion (Count III), tortious breach of contract (Count IV),
unjust enrichment (Count V) and breach of the implied covenant of good faith and
fair dealing (Count VII), and seeks punitive damages (Count VI).
In a February 4, 2014 Order, the Court granted Irongate’s motion to dismiss.
The Court found that, because the claims asserted in this action arise out of the
purchase and sale of the units, the Sunday’s Companies waived and released their
deposit and escrow claims when they entered into the Settlement Agreement. 2 See
Dkt. No. 22 (2/4/14 Order).
The relevant portion of the Settlement Agreement provides:
Purchaser’s Release. Each Releasor and each of such releasor’s
members, successors, heirs, assigns, parents, owners, investors, managers,
agents, officers, directors, employees, attorneys, lenders, insurers and
affiliates (collectively, “Releasor”) hereby releases Releasee and each of
Releasee’s member, successors, heirs, assigns, parents, owners, investors,
managers, agents, officers, directors, employees, attorneys, lenders,
insurers and affiliates (collectively, “Released Parties”) from the claims
made or asserted or that could have been made or asserted, in the Litigation,
including but not limited to claims for equitable and/or legal relief and
including damages of any and all kind; provided, however, that this release
does not include or release claims that Releasor may have arising (a) after
the execution of this Agreement, (b) out of any design or construction
defect claims, known or unknown, and (c) out of the contractual duties,
rights or obligations of the Released Parties, if any, relating in any way to
The Court dismissed the claim for breach of contract (Count I), and likewise
concluded that, to the extent the Sunday’s Companies’ remaining claims for
declaratory relief (Count II), conversion (Count III), tortious breach of contract
(Count IV), unjust enrichment (Count V), and breach of the implied covenant of
good faith and fair dealing are covered by the Settlement Agreement, they likewise
failed, because they sought the recovery of deposits paid pursuant thereto.
Additionally, the Court dismissed the claim for punitive damages, which cannot be
maintained as a stand-alone cause of action (Count VI). See Dkt. No. 22 at 11-12
In a November 15, 2016 memorandum disposition, the Ninth Circuit reversed
the Court’s February 4, 2014 Order, concluding instead that the Settlement
Agreement is ambiguous as to the extent to which the Sunday’s Companies’ claims
the (i) management and/or operation of the Front Desk Unit, (ii) the Home
Owners Association (“HOA”), including without limitation and claims
made by or on behalf of the HOW, and any claims made against the HOA,
and/or (iii) the assignment or non-assignment of the Trump License to the
HOA. In other words, upon the execution of this Agreement, this release is
intended to forever release and waive any and all claims by the Releasor
arising out of the purchase and sale of the Units and the Litigation, but is not
intended to release, limit or impair in any respect Releasor’s claims as
owner of the Units existing after the execution of this Agreement, subject to
and limited only by the release described in this paragraph. To the extent
Releasor is a party to the Litigation, Releasor also agrees to execute a
stipulation for dismissal with prejudice of any and all claims that have been,
or could have been, made or asserted in accordance with the terms of this
Settlement Agreement at 3-4, Dkt. No. 22 at 6-7 (2/4/14 Order).
are barred, and remanded for further proceedings. See Dkt. No. 43. The Sunday’s
Companies did not appeal and the Ninth Circuit’s ruling did not disturb the Court’s
dismissal of Count IV (tortious breach of contract), Count VI (punitive damages),
and Count VII (breach of the implied covenant of good faith and fair dealing).
Irongate now seeks dismissal of the Sunday’s Companies’ non-contract
claims, arguing that Hawaii law does not allow for recovery in tort or in equity
where the parties’ rights and claims are governed by contract.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be granted.” Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). The Court may dismiss a complaint either because it lacks a cognizable
legal theory or because it lacks sufficient factual allegations to support a cognizable
legal theory. Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).
Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 570 (2007)). “[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Id. Accordingly, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550
U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). Factual allegations that only permit the court to infer “the mere possibility of
misconduct” do not constitute a short and plain statement of the claim showing that
the pleader is entitled to relief, as required by Rule 8(a)(2). Id. at 679.
Preliminarily, the parties agree that the Ninth Circuit’s November 15, 2016
ruling left untouched the Court’s dismissal of Count IV (tortious breach of contract),
Count VI (punitive damages), and Count VII (breach of the implied covenant of
good faith and fair dealing). Accordingly, Irongate’s motion to dismiss is denied as
moot as to those claims.
Irongate’s motion to dismiss the Sunday’s Companies’ conversion and unjust
enrichment claims is addressed below.
Count III: Conversion
Irongate seeks dismissal of Count III, contending that conversion cannot be
pled in the alternative to Plaintiffs’ claims for breach of contract. According to
Irongate, the rights and liabilities of the parties are entirely governed by the Sales
Contracts and Settlement Agreement, and even Plaintiffs do not assert any duty
owed by Irongate independent of the contracts. The Court agrees that the Sunday’s
Companies may not obtain a double recovery, e.g. tort damages that are identical to
contract damages for the same conduct that gives rise to Plaintiffs’ various claims.
However, the Court does not read the allegations of the Complaint in the
circumscribed manner urged by Irongate. The Court simply cannot determine at
present whether possible tort remedies that might be available are duplicative of or
even broader than the damages available under the contracts, or whether the
remedies for each type of claim are indistinguishable, as Irongate insists. In fact, at
this stage, it could be the case that contract damages are not available at all to
Plaintiffs, with a tort recovery ending up being Plaintiffs’ only avenue of relief. At
the pleading stage of the litigation, the allegations in the Complaint sufficiently state
a conversion claim in the alternative to the breach of contract causes of action.
Count III alleges as follows:
Pursuant to the terms of the Sales Contracts, the Excess
Deposits were to be refunded to the Plaintiffs if Irongate
exercised its right to terminate the Sales Contracts.
Irongate exercised its right to terminate the Sales
Contracts, but did not return the Excess Deposits.
Irongate has no right to possess or use the Excess
Irongate has failed and refused to return the Excess
Deposits and has converted the funds to its own use.
Irongate’s actions constitute a misappropriation and
conversion of the Plaintiffs’ property.
Complaint ¶¶ 41-45.
Irongate maintains that the claim for conversion and any corresponding
recovery arise entirely from the alleged breach of the Sales Contracts. It argues that
Count III must be dismissed because the parties’ conduct and claims are solely
governed by the contracts, and under these circumstances, Hawaii law will not allow
the Sunday’s Companies to pursue tort theories. See Mem. In Supp. at 10.
Irongate relies on Francis v. Lee Enterprises, Inc., which held that “Hawai‘i law will
not allow a recovery in tort, including a recovery of punitive damages, in the absence
of conduct that (1) violates a duty that is independently recognized by principles of
tort law and (2) transcends the breach of the contract.” 89 Hawai‘i 234, 244, 971
P.2d 707, 717 (1999). As this district court explained, however, “Francis prohibits
a double recovery; it does not prohibit a plaintiff from alleging a contract claim and
tort claims based on the same facts as an alternate theory of liability.” Hele Ku KB,
LLC v. BAC Home Loans Servicing, LP, 2011 WL 5239744, at *7 (D. Haw. Oct. 31,
2011). That is the case here.
To the extent Irongate’s quarrel turns on whether the Complaint sufficiently
identifies an independent duty transcending the breach of contract, the claim
survives a Rule 12(b)(6) motion, properly accounting for Rule 8’s pleading
standards. Rule 8(a)(3) provides that a “pleading that states a claim for relief must
contain a demand for the relief sought, which may include relief in the alternative or
different types of relief.” Rule 8(d) further provides:
(1) In General. Each allegation must be simple, concise, and
direct. No technical form is required.
(2) Alternative Statements of a Claim or Defense. A party
may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense
or in separate ones. If a party makes alternative statements, the
pleading is sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses. A party may state as
many separate claims or defenses as it has, regardless of
Consequently, the Sunday’s Companies may allege both contract and tort claims
against Irongate and are not required to elect a single legal theory upon which to
proceed. 3 If Irongate’s conclusions are correct, and the conversion claim merely
When alleging these claims alternatively, the Sunday’s Companies need not expressly state that
the conversion claim is pled in the alternative to the breach of contract claim. See, e.g., Soule v.
Hilton Worldwide, Inc., 1 F. Supp. 3d 1084, 1103 (D. Haw. 2014) (“Indeed, Rule 8(d) allows a
plaintiff to plead in the alternative and, contrary to [defendant’s] assertions, there is no
requirement that Plaintiff include the magic words ‘in the alternative’ in making alternative
claims.”); Florey Inst. of Neuroscience & Mental Health v. Kleiner Perkins Caufield & Byers,
2013 WL 5402093, at *8 (N.D. Cal. Sept. 26, 2013) (“Plaintiff need not use the magic word
‘alternatively’ to indicate that its claim was made in the alternative. ‘Under Rule 8, plaintiff need
not use particular words to plead in the alternative as long as it can be reasonably inferred that this
is what [he was] doing.’”) (quoting Coleman v. Standard Life Ins. Co., 288 F. Supp. 2d 1116, 1120
(E.D. Cal. 2003)); Cliffton Equities, Inc. v. Summerlin Asset Mgmt. III, LLC, 2012 WL 6570940, at
*1 n.2 (D. Ariz. Dec. 17, 2012) (“While the defendant’s counsel conceded at oral argument that the
unjust enrichment counterclaim was not expressly pleaded as an alternative to the breach of
contract counterclaim, that is not legally significant because ‘there are no requirements to include
the magic words “in the alternative” in making alternative claims.’”) (quoting Arnold &
duplicates the breach of contract claims, the Sunday’s Companies cannot ultimately
recover under both theories.
To the extent Irongate argues that the Complaint does not sufficiently allege
that the initial taking of the deposits was wrongful, the Court finds that Count III is
sufficiently pled. Although some iterations of conversion require “taking from the
owner without his consent,” the core of the “common law tort claim of conversion
involves ‘wrongful dominion over the property of another.’” Sung v. Hamilton,
710 F. Supp. 2d 1036, 1043 (D. Hawai‘i 2010) (quoting Matsuda v. Wada, 101 F.
Supp. 2d 1315, 1321 (D. Haw. 1999)). Under Hawaii law:
Conversion is any distinct act of dominion wrongfully exerted
over another’s personal property in denial of or inconsistent with
his rights therein, such as a tortious taking of another’s chattels,
or any wrongful exercise or assumption of authority, personally
or by procurement, over another’s goods, depriving him of the
possession permanently or for an indefinite time. Tsuru v.
Bayer, 25 Haw. 693, 697 (Haw. Terr. 1920). “Conversion
encompasses the following acts: ‘(1) A taking from the owner
without his consent; (2) an unwarranted assumption of
ownership; (3) an illegal use or abuse of the chattel; and (4) a
wrongful detention after demand.’” Freddy Nobriga
Enterprises, Inc. v. State, Dep’t of Hawaiian Home Lands, 129
Hawai‘i 123, 129, 295 P.3d 993, 999 (App. 2013) (quoting
Tsuru, 25 Haw. at 696)[.]
Associates, Inc. v. Misys Healthcare Systems, 275 F. Supp. 2d 1013, 1029 (D. Ariz. 2003)). But
see Lopes v. Vieira, 488 F. Supp. 2d 1000, 1048 (E.D. Cal. 2007) (Dismissing with leave to amend
a claim for negligent misrepresentation alleged in the same cause of action as a claim for
intentional misrepresentation, explaining that “[a]lthough alternative legal theories can be alleged
in separate claims, it is improper to join two inconsistent claims in one.”).
Yoneji v. Yoneji, 136 Hawai‘i 11, 16, 354 P.3d 1160, 1165 (Ct. App. 2015). 4 The
Yoneji decision made clear that “the defendant’s knowledge, intent, motive, mistake,
and good faith are generally irrelevant to a conversion claim.” Id. at 16, 354 P.3d at
1165; see also Freddy Nobriga, 129 Hawai‘i at 130, 295 P.3d at 1000 (“So long as
he [or she] intends to deal with the property in a way which is in fact inconsistent
with the plaintiff’s right, he [or she] is a converter.”) (citation omitted).
The Complaint satisfactorily alleges a claim for conversion. Here, the
alleged taking and retention of the deposits, assumption of ownership of the funds,
and refusal to return the deposits after demand was made, sufficiently state a claim
for conversion of specific, identifiable funds. Further, the Sunday’s Companies
assert that Irongate attempted to convert funds held in escrow to its own use and
wrongfully detained them after demand. 5 Because the Complaint sufficiently states
See also Sung, 710 F. Supp. 2d at 1044 (“[A]ny distinct act of dominion wrongfully exerted over
one’s property in denial of his right, or inconsistent with it, is a conversion. . . . While therefore it
is a conversion where one takes the plaintiff’s property and sells or otherwise disposes of it, it is
equally a conversion if he takes it for a temporary purpose only, if in disregard of the plaintiff’s
right. . . . The word ‘conversion’ by a long course of practice has acquired a technical meaning.
It means detaining goods so as to deprive the person entitled to the possession of his dominion over
them[.]”) (quoting Tsuru, 25 Haw. 693, 1920 WL 830 at *2).
The Complaint alleges as follows:
Further, in November 2011, Irongate also attempted to convert $127,349.32
of the Sunday’s Entities’ Funds which remain in escrow (the “Escrow
Funds”) to its own use.
Despite the Sunday’s Entities clear right to recover the Escrow Funds,
Irongate has refused to instruct the escrow company to release the Escrow
Funds to the Sunday’s Entities.
a claim for conversion in the alternative to the claims for breach of contract, the
Motion is denied with respect to Count III.
Count V: Unjust Enrichment
Irongate seeks dismissal of the claim for unjust enrichment on the grounds
that the Sunday’s Companies do not seek an equitable recovery beyond what they
would receive if they succeed on their breach of contract claim, and because the
contract provides them with an adequate remedy at law. The Court disagrees and
finds that dismissal at this stage is not warranted. Like the claim for conversion, the
claim for unjust enrichment may be alleged in the alternative to the claims for breach
of contract, under the circumstances presented here.6
Between June of 2012 and October of 2012 – and while continuing to hold
the Excess Deposits and refusing to release the Escrow Funds – Irongate
sold each of the Units to new buyers.
Upon information and belief, Irongate sold the Units to third parties for
approximately $250,000 more than Irongate would have received under the
As a result of the additional profit earned by Irongate when it sold the Units
to third parties, Irongate does not have any actual damages to support
withholding any of the deposits under Hawaii law.
Complaint ¶¶ 27-31.
See, e.g., Isofoton, S.A. v. Giremberk, 2006 WL 1516026, at *4 (D. Ariz. May 30, 2006) (In a case
involving breach of contract and unjust enrichment claims arising from alleged failure to pay for
products under a commission agreement, the court denied a motion to dismiss the unjust
enrichment claim, concluding that it was properly pled as an alternative theory of recovery under
Rule 8 because no findings had been made regarding the existence of a binding agreement and
whether the benefit of the bargain had been received.); cf. U.S. Bank Nat’l Ass’n v. Casa Grande
Count V alleges: “By retaining all of the deposits paid by the Sunday’s
Entities in spite of the fact that it suffered no actual damages as a result of the
Sunday’s Entities’ inability to close on the Units, Irongate has been unjustly
enriched.” Complaint ¶ 53. These allegations are sufficient to state an equitable
claim for unjust enrichment. This district court has previously explained that:
Claims for unjust enrichment and quantum meruit derive from
principles of equity and quasi-contract. See Porter v. Hu, [116
Hawai‘i 42] 16 P.3d 994, 1007 (Haw. 2007); Hiraga v.
Baldonado, 96 Hawai‘i 365, 31 P.3d 222, 229 (Haw. [Ct. App.]
2001). Hawai‘i law has approved “the principle, long-invoked
in the federal courts, that ‘equity has always acted only when
legal remedies were inadequate.’” Porter, 169 P.3d at 1007
(quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 509,
79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). The absence of an
adequate remedy at law, therefore, is the “necessary
prerequisite” to maintaining equitable claims. Id. (quoting Bd.
of Dirs. of the Ass’n of Apt. Owners of Regency Tower Condo.
Project v. Regency Tower Venture, 2 Haw. App. 506, 635 P.2d
244, 249 (Haw. Ct. App. 1981)).
Swartz v. City Mortg., Inc., 911 F. Supp. 2d 916, 938 (D. Haw. 2012) (citing AAA
Hawaii, LLC v. Hawaii Insurance Consultants, Ltd., 2008 WL 4907976 at *3 (D.
Haw. Nov. 12, 2008)); see also Durrette v. Aloha Plastic Recycling, Inc., 105
Regional Medical Center, 2006 WL 1698288, at *6 (D. Ariz. June 16, 2006) (Ruling on summary
judgment that the existence of a contract between the parties did not preclude the unjust
enrichment claim where “an unjust enrichment claim may be brought in the alternative, subject to
a single recovery, so long as the unjust enrichment claim does not seek to relieve the plaintiff of the
effects of an express provision in the contract. . . . Here, even if the contracts did not provide for
reimbursement, they in no way prohibited reimbursement of such an overpayment. [The
plaintiff’s] unjust enrichment claim therefore does not seek to subvert any express provision of the
parties’ contract and was properly raised in the alternative.”).
Hawai‘i 490, 100 P.3d 60, 61 (2004) (unjust enrichment occurs when the plaintiff
confers a benefit on the defendant, and the defendant unjustly retains the benefit).
The Court cannot determine at this nascent stage whether the Sunday’s
Companies have an adequate remedy at law through their contract claim. What is
clear is that the Complaint adequately alleges that Plaintiffs seek the return of the
deposits and escrow funds, and that Irongate does not have any actual damages to
support withholding of these monies. See Complaint ¶¶ 31, 53-54. The Sunday’s
Companies note that their unjust enrichment claim “is meant to ensure that a
complete recovery can be obtained, even where . . . the express contract does not
fully address an injustice.” Mem. in Opp. at 10.
Irongate’s assertion that the parties’ dispute will be answered entirely by the
parties’ contracts may turn out to be correct. At this point, however, that is a
prediction, not a certainty. Accordingly, the Motion is denied with respect to Count
V, and Plaintiffs may proceed with their unjust enrichment claim as an alternative
theory of recovery under Rule 8(d).
For the foregoing reasons, Irongate’s Motion to Dismiss is DENIED as to
Counts III and V. The Motion to Dismiss is DENIED AS MOOT with respect to
Counts IV, VI, and VII, which were dismissed by the Court’s prior order. See Dkt.
IT IS SO ORDERED.
DATED: February 10, 2017 at Honolulu, Hawai‘i.
Sunday’s Child, LLC et al. v. Irongate AZREP BW LLC, CV NO 13-00502 DKW-RLP; ORDER
DENYING DEFENDANT IRONGATE AZREP BW LLC’S MOTION TO DISMISS
COUNTS III, IV, V, VI AND VII OF PLAINTIFFS’ COMPLAINT
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