CCP Mustang Holdings LLC v. Orand et al

Filing 78

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 8/17/2017: Based on the foregoing analysis, Plaintiff CCP's motion to dismiss and motion to strikeis granted, and Ventas' motion to dismiss is granted. The motion to dismiss brought by Doman and Jacoby is stricken as moot. Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CCP MUSTANG HOLDINGS LLC,

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Plaintiff,
v.
WILLIAM D. ORAND, et al.
Defendants.

No. 16 C 9081

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff CCP Mustang Holdings LLC’s
(CCP) motion to dismiss the counterclaim, and motion to strike. This matter is also
before the court on Third-Party Defendant Ventas Realty, Limited Partnership
(VRLP), and Ventas Realty, Inc.’s (VRI) (collectively referred to as “Ventas”)
motion to dismiss, and on Third-Party Defendant Timothy Doman’s (Doman) and
Third-Party Defendant Nicholas Jacoby’s (Jacoby) motion to dismiss. For the
reasons stated below, the motion to strike is granted and the motions to dismiss
brought by CCP and Ventas are granted, and the motion to dismiss brought by
Doman and Jacoby is stricken as moot.

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BACKGROUND
VRLP allegedly leases commercial properties and VRI is VRLP’s managing
partner. In 2012 VRLP allegedly learned that Kindred Healthcare (Kindred), one of
VRLP’s largest lessees, would not be renewing hundreds of nursing home facility
leases. VRLP allegedly then sent out requests for proposals from other nursing home
operators, including Vanguard Healthcare, LLC (Vanguard). Vanguard allegedly
submitted a proposal to lease and operate 12 nursing homes. The proposal was
allegedly refused by VRLP, but in early 2013, after further negotiations, VRLP
allegedly agreed to lease the 12 facilities to certain affiliates of Vanguard (Tenants)
pursuant to a Master Lease. Financing for the operation of the nursing homes was
allegedly obtained from GE Credit Corporation (GECC). A dispute allegedly arose
between the Tenants and VRLP, and as part of its resolution VRLP allegedly agreed
to guaranty up to $10 million of Vanguard’s financial obligation to GECC, which
was Vanguard’s lender, and agreed to provide $5 million letter of credit to GECC.
Those obligations were also allegedly guaranteed by Vanguard. The Master Lease
was also allegedly amended to include individual guarantees (Guarantees) by
Defendant William D. Orand (Orand) and Defendant Jere Ervin (Ervin) (collectively
referred to as “Defendants”). Operational difficulties with the transition of the
nursing homes allegedly occurred and VRLP and Tenants allegedly entered into a
Termination and Transition Agreement (TTA) and two amendments, under which the
Master Lease was terminated and the facilities were transitioned to new operators.
Defendants claim that during the negotiations over the TTA, Doman, an executive of
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VRI, and Jacoby who worked for VRLP, allegedly represented to Defendants that
VRLP would release Defendants from the Guarantees once the transition to the new
lessees was complete. Defendants contend that it was based on such representations
that they allowed the Vanguard affiliates to enter into the TTA.
In 2015, VRLP allegedly assigned its rights under the Guarantees to CCP.
The Tenants have allegedly failed to honor their contractual obligations and
Defendants have allegedly failed to honor the terms set forth in the Guarantees. CCP
has included in its amended complaint a breach of guaranty claim brought against
Orand (Count I), and a breach of guaranty claim brought against Ervin (Count II).
CCP seeks to recover funds it was required to pay to GECC as part of a settlement
with GECC and amounts owed for rent and other payments under the Master Lease.
Defendants have filed a counterclaim and third-party complaint against CCP,
VRLP, VRI, Doman, and Jacoby. Defendants contend that Ventas provided them
with Kindred financial statements that contained inaccurate information and that
Ventas representatives orally agreed at one point to release Defendants from the
Guarantees. Defendants include in the counterclaim and third-party complaint
breach of guaranty claims brought against CCP, VRLP, and VRI (Count I), breach of
contract claims based on an alleged breach of the TTA brought against CCP, VRLP,
and VRI (Count II), breach of contract claims based on an alleged breach of a
settlement agreement brought against CCP, VRLP, and VRI (Count III), breach of
contract claims based on an alleged breach of the TTA brought against CCP, VRLP,
and VRI (Count IV), fraud claims brought against VRLP, VP, Doman, and Jacoby
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(Count V), declaratory judgement claims brought against VRI and CCP relating to
the assignment of rights from VRLP (Count VI), breach of the duty of good faith and
fair dealing claims brought against VRI, VRLP, and CCP (Count VII), negligent
misrepresentation claims based on Kindred financial statements brought against VRI,
VRLP, and CCP (Count VIII), and negligent misrepresentations claims based on
alleged promises to release Defendants brought against VRI, VRLP, CCP, Doman,
and Jacoby (Count IX).
CCP moved to dismiss the counterclaims brought against CCP. VRI, VRLP,
Doman, and Jacoby moved to dismiss the claims brought against them in the thirdparty complaint. Subsequently, the parties entered into a joint stipulation and
Defendants agreed to dismiss all claims in Counts III, VI, and IX of the counterclaim
and third-party complaint, and to dismiss the fraud claims brought against Doman
and Jacoby in Count V. CCP and Ventas now move to dismiss the remaining claims
brought against them.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir.
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2002). A plaintiff is required to include allegations in the complaint that “plausibly
suggest that the plaintiff has a right to relief, raising that possibility above a
‘speculative level’” and “if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.
2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007));
see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that “[t]o survive
a motion to dismiss, the complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” and that “[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”)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009))(internal quotations
omitted).

DISCUSSION

I. Waiver of Counterclaims, Third-Party Claims, and Defenses
CCP and Ventas argue that Defendants waived all counterclaims and defenses.
The court can consider the contents of the Guarantees when adjudicating the instant
motion since the documents were referred to in the counterclaim and relates to a
central part of Defendants’ counterclaim. McCready v. eBay, Inc., 453 F.3d 882, 891
(7th Cir. 2006)(stating that “documents attached to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff's complaint and
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are central to his claim”)(internal quotations omitted)(quoting 188 LLC v. Trinity
Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002)).

A. Wavier in Guarantees as to CCP
CCP argues that Defendants waived their right to assert counterclaims in a
waiver provision in the Guarantees. The Guarantees included the following waiver
provision (Guaranty Waiver):
GUARANTOR SHALL NOT INTERPOSE ANY COUNTERCLAIM OR
COUNTERCLAIMS OR CLAIMS FOR SET-OFF, RECOUPMENT OR
DEDUCTION OF RENT IN ANY ACTION BROUGHT BY LANDLORD
AGAINST GUARANTOR UNDER THIS GUARANTY. GUARANTOR
SHALL NOT BE ENTITLED TO MAKE, AND HEREBY WAIVES ANY
AND ALL DEFENSES AGAINST ANY CLAIM ASSERTED BY
LANDLORD TO ENFORCE [the Master lease] . . . .
(CCP Ex. 1, 2). Under Illinois the terms of a guaranty are “strictly construe[d] . . . in
favor of the guarantor, especially when the creditor prepared the guaranty
agreement.” S. Wine & Spirits of Illinois, Inc. v. Steiner, 8 N.E.3d 1065, 1069 (Ill.
App. Ct. 2014); see also TCFIF Inventory Fin., Inc. v. Appliance Distributors, Inc.,
2014 WL 806961, at *6 (N.D. Ill. 2014)(stating that “[w]hile breach of guaranty and
breach of contract claims have different elements, they are closely aligned, with a
guaranty enforced according to general contract principles”)(internal quotations
omitted)(quoting Gen. Elec. Bus. Fin. Servs. Inc. v. Hedenberg, 2011 WL 1337105,
at *2 (N.D. Ill. 2011)).

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1. Waiver of Counterclaims in Guarantees
CCP argues that meaning of the Guaranty Waiver is that Defendants waived
their rights to bring “ANY COUNTERCLAIM” and separately waived their rights to
bring “COUNTER CLAIMS OR CLAIMS FOR SET-OFF, RECOUPMENT OR
DEDUCTION OF RENT. . . .” (CCP E. 1,2 )(emphasis added). (CCP Reply 8).
While that is one possible interpretation of the Guaranty Waiver, as indicated above,
under Illinois law, guarantees are strictly construed in favor of the guarantor. S.
Wine & Spirits of Illinois, Inc., 8 N.E.3d at 1069. The Guaranty Waiver waiving the
right to bring “ANY COUNTERCLAIM OR COUNTERCLAIMS OR CLAIMS
FOR SET-OFF, RECOUPMENT OR DEDUCTION OF RENT” can also be read to
cover: (1) a counterclaim for set-off, recoupment or deduction of rent, (2)
counterclaims for set-off, recoupment or deduction of rent, or (3) claims, such as
third-party claims, for set-off, recoupment or deduction of rent. CCP offers no
explanation as to why the parties would have decided make a distinction between
counterclaims and third-party claims and only limit third-party claims. CCP cites to
In re Airadigm Commc'ns, Inc., 616 F.3d 642 (7th Cir. 2010), and Flextronics Int'l
USA, Inc. v. Sparkling Drink Sys. Innovation Ctr. Ltd, 186 F. Supp. 3d 852 (N.D. Ill.
2016) in support of the application of the last antecedent rule, but such cases did not
involve a breach of guaranty claim and constructions were not made in favor of a
guarantor. Nor is it even clear from the language in the Guaranty Waiver why the
parties decided to specify that it covered “COUNTERCLAIMS” when it already
covered any “COUNTERCLAIM.” In the instant action, construing the Waiver
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Provision in Defendants’ favor can only result in a conclusion that they did not in the
Guaranty Waiver waive their right to file any and all possible counterclaims and a
conclusion that the waiver of rights regarding counterclaims and claims is limited to
those for set-off, recoupment or deduction of rent. CCP also argues that Defendants
are in essence seeking recoupment and a set-off in this case. Defendants’
counterclaims, however, include separate legal theories and do not fall within the
scope of the Guaranty Waiver.

2. Waiver of Defenses in Guarantees
CCP also argues that Defendants waived their rights to bring any defenses in
the Guarantees. Unlike with the counterclaims, there is no limitation upon the
waiver of defenses. Under Illinois law, a party may waive in a guaranty his right to
bring any defenses. See Fife v. mPhase Techs., Inc., 2014 WL 7146212, at *9 (N.D.
Ill. 2014)(quoting Chemical Bank v. Paul, 614 N.E.2d 436, 441 (Ill. App. Ct. 1993)
for proposition that “[g]uaranty agreements containing waivers of all defenses . . .
have been upheld as validly binding”). It is clear that the instant action is brought
against Defendants “under the” Guarantees. The plain language of the Guarantees
expressly foreclose Defendants from pursuing a defenses in cases such as the instant
action. See id. (stating that “[w]here a guaranty is unequivocal, it must be construed
according to the terms and language used, as it is presumed the parties meant what
the language imports”). Defendants clearly and unequivocally waive their right to
raise “ANY AND ALL DEFENSES AGAINST ANY CLAIM ASSERTED BY
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LANDLORD. . . .” (CCP E. 1,2 ). There is no indication that Defendants were
coerced into agreeing to such a waiver or evidence showing that the did not
knowingly and voluntarily agree to the waiver.
Defendants also argue that they should be able to avoid the effect of the
waiver, contending that CCP does not have any valid claim under the Guarantees.
However, the above language in the waiver does not require CCP to proceed in an
action and prevail on the merits of claims before Defendants would be prohibited
from presenting a defense. Such a result would render the provision meaningless
since the litigation would be resolved before CCP would have an opportunity to bar a
defense. CCP has also shown that Ventas’ rights under the Guarantees were
assigned to CCP.
Defendants next argue that they did not realize when they signed the
Guarantees that they would be unable to assert certain defenses in the future.
Defendants could have protected themselves against such an eventuality by refusing
to accept the above Guaranty Waiver. Nothing in the waiver limited its scope to
defenses known to Defendants at the time that the Guarantees were assigned. If
Defendants desired to have their options open to pursue potential defenses in the
future then they could have chosen not to agree to the waiver provision and dealt
with the ramifications relating to GECC that resulted. Instead, they chose to sign the
Guarantees with the Guaranty Waiver and enjoyed the benefit of the bargain. Nor is
the waiver provision is so broad so as to curtail Defendants’ rights to pursue defenses
against CCP or other parties for all time. It is limited to action brought to enforce
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Defendants’ obligations under the Guarantees such as the instant action. Defendants
are therefore barred from presenting defenses. Therefore, CCP’s motion to strike
Defendants’ affirmative defenses is granted.
Barring Defendants from pursuing counterclaims and defenses does not leave
Defendants without recourse in the instant action. CCP will still need to prevail on
the merits of its claims in order to recover from Defendants. Several of Defendants’
arguments relating to the scope of the Guarantees, whether obligations under the
Guarantees have been triggered, and whether obligations under the Guarantees were
extinguished are all arguments that can be made when challenging CCP’s contention
that it can satisfy all of the elements for its breach of guaranty claims.

B. Waiver in Guarantees as to Ventas
Ventas argues that Defendants agreed to waive third party claims in
the Guaranty Waiver, adopting arguments presented by CCP. However, as explained
above, the Guaranty Waiver did not extend to all counterclaims. The court also notes
that in regard to third-party claims, since the language relating to “SET-OFF,
RECOUPMENT OR DEDUCTION OF RENT” immediately follows the reference
to “CLAIMS” and clearly applies to third-party claims, the argument for a waiver by
Ventas is actually even weaker than the one presented by CCP in regard to
counterclaims.

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C. Waiver of Counterclaims and Defenses in TTA
CCP and Ventas also argues that even if Defendants did not waive their rights
to bring claims, counterclaims, or defenses in the Guaranty Waiver, Defendants
waived such rights in the Second Amendment to the TTA. Defendants in signing the
“Acknowledgment and Reaffirmation of Personal Guarantors” with the TTA agreed
to be bound by the release in the TTA, which was extremely broad and covered all
types of claims and defenses, known and unknown. (DE 64: 8, 16, 18). Although
Defendants contend they did not intend to sign in their individual capacity, the
“Acknowledgment and Reaffirmation of Guarantor” that Defendants each signed
makes very clear that they were signing in their individual capacities and continuing
their individual liability. (DE 64-1: 16, 18). The release in the TTA thus forecloses
the counterclaims and defenses brought against CCP and Ventas.

II. Breach of Guarantee Claims (Count I)
Ventas argues that Defendants have not alleged facts to state valid breach of
guarantee claims, contending that Defendants have failed to identify any specific
provisions in the Guarantees that were breached. Defendants assert that Ventas
failed to release Defendants from the Guarantees, and engaged in other alleged
conduct such as failing to preserve collateral and making misrepresentations.
(CC/TPC Par. 44). Ventas is correct, however, that Defendants have failed to point
to specific provisions of the Guarantees that were breached by such alleged conduct.
Defendants have thus failed to provide Ventas with adequate notice of the basis for
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the breach of guaranty claims. Defendants’ conclusory assertion that the Guarantees
were breached is a legal conclusion and is not entitled to be accepted as true for the
purposes of the instant motion. See Oakland Police & Fire Ret. Sys. v. Mayer
Brown, LLP, 861 F.3d 644, 649 (7th Cir. 2017)(explaining that when adjudicating a
Rule 12(b)(6) motion, a court accepts “as true the facts alleged in the plaintiffs'
consolidated complaint, but not alleged legal conclusions”). The court also notes
that the claims set forth in Count I actually appear to be redundant tort claims
presented as breach of contract claims and, to the extent that Defendants argue that
Ventas failed to cap the amounts owed under the Guarantees, that would be an
affirmative defense relating to damages rather than a counterclaim. Therefore,
Ventas’ motion to dismiss the claims brought against it in Count I is granted. For the
same reasons, CCP’s motion to dismiss the claims brought against it in Count I is
granted.

III. Breach of TTA Claims (Count II)
Ventas moves to dismiss the breach of TTA claims in Count 2. In Count II
Defendants contend that Ventas breached the TTA by engaging in alleged conduct
such as failing to provide notice to Defendants of claims, failing to protect collateral,
and making misrepresentations indicating that Ventas would release Defendants from
the Guarantees. (CC/TPC Par. 51). Defendants again, however, fail to identify
specific provisions in the TTA that were breached by Ventas. It is also apparent
from a review of the TTA that Defendants were not even parties to the TTA. Thus,
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they lack standing to sue for any breaches under TTA. Defendants argue in their
response that they can still recover for breaches as third-party beneficiaries of the
TTA. A plaintiff that was not a party to a contract can still recover under Illinois law
as a third-party beneficiary to the contract by showing that “the contracting parties
intended to confer a benefit upon a nonparty to their agreement.” Quinn v.
McGraw-Hill Companies, Inc., 168 F.3d 331, 334 (7th Cir. 1999)(internal quotations
omitted)(quoting XL Disposal Corp. v. John Sexton Contractors Co., 659 N.E.2d
1312, 1316 (Ill.1995)). Defendants have failed to show that they should be deemed
third-party beneficiaries as to the TTA. Quinn, 168 F.3d at 334 (stating that “Illinois
has made it very difficult to prove intent to benefit the third party, because there is a
strong presumption that parties to a contract intend that the contract's provisions
apply to only them and not to third parties”)(internal quotations omitted)(quoting 155
Harbor Drive Condominium Ass'n v. Harbor Point, Inc., 568 N.E.2d 365, 375 (Ill.
App. Ct. 1991)). Nor is the court required to accept as true the legal conclusion
presented in the counterclaim and third-party complaint that Defendants were thirdparty beneficiaries. Oakland Police & Fire Ret. Sys. 861 F.3d at 649.
Defendants identify as a basis for their third-party beneficiary status Section
2.10(b) of the Second Amendment of the TTA (Section 2.10(b)), which Defendants
contend provided a condition under which they would be released from the
Guarantees. However, as Ventas correctly points out, absent from Defendants’
pleadings are an allegation that the conditions in the TTA that would trigger the right
to release ever were satisfied. Ventas contends that Defendants did not allege such
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facts and cannot allege such facts because Defendants know that the conditions were
never satisfied. Therefore, Ventas’ motion to dismiss the claims in Count II brought
against Ventas is granted. For the same reasons, CCP’s motion to dismiss the claims
in Count II brought against CCP is granted.

IV. Breach of Oral Agreement and Fraud Claims (Counts 4 and 5)
Ventas moves to dismiss the breach of oral agreement and fraud claims in
Counts 4 and 5. The claims in Counts 4 and are premised on Ventas’ alleged oral
promises and misrepresentations that Ventas was going to release Defendants from
the Guarantees. The record shows that Defendants each signed with the second
amendment to the TTA an “Acknowledgment and Reaffirmation of Personal
Guarantors,” acknowledging their continued personal liability. Defendants also
acknowledge that Section 2.10(b) provided the conditions upon which they would be
released from the Guarantees and Defendants have not alleged that the conditions
were met. Although Defendants were not parties to the TTA they agreed in writing
to be bound by certain terms in the TTA as if they were parties. (DE 64-1:16).
The TTA is a written agreement with an integration clause and no-reliance
provision, and thus allegations as to alleged oral statements in Count 4 cannot control
the parties’ relationship. (DE 64-1: 11). In regard to the fraud claims in Count 5, the
presence of a non-reliance clause does not automatically preclude a fraud claim at the
pleadings stage. In Benson v. Stafford, 941 N.E.2d 386, 405 (Ill. App. Ct. 2010),
which Ventas cites, the court reviewed all evidence at the summary judgment stage
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and indicated that “[o]ne factor that courts have considered in analyzing justifiable
reliance is the presence of a nonreliance clause in a contract between the parties.” Id.
Thus, the fraud claim is not deficient at this juncture based on the non-reliance
clause. However, the claims in Count 4 and 5 based on oral statements would be
barred under the Illinois Credit Agreements Act (ICAA), 815 ILCS 160/1 et seq.
Comerica Bank v. Nali, Inc., 2015 WL 5920787, at *4 (N.D. Ill. 2015)(explaining
that 815 ILCS 160/2 of ICAA “bars claims by obligors that are related to a credit
agreement, unless that credit agreement is in writing and is signed by the creditor and
the debtor”). In addition, Defendants, in agreeing to be bound by the terms in the
TTA also agreed to release claims such as those in Counts 4 and 5, known and
unknown. (DE 64-1: 8, 16). Therefore, Ventas’ motion to dismiss the claims brought
against Ventas in Counts 4 and 5 is granted. For the same reasons, CCP’s motion to
dismiss the claims brought against CCP in Counts 4 and 5 is granted.

V. Breach of Duty of Good Faith and Fair Dealing Claims (Count 7)
Ventas moves to dismiss the breach of duty of good faith and fair dealing
claims in Count 7, contending that Defendants have not identified any specific
contractual discretion that could support such a claim. Under Illinois law, a covenant
of good faith and fair dealing “is implied in every contract absent express
disavowal.” Interim Health Care of N. Illinois, Inc. v. Interim Health Care, Inc., 225
F.3d 876, 884 (7th Cir. 2000). Pursuant to such a duty, when a party to a contract is
provided with “contractual discretion, it must exercise that discretion reasonably and
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with proper motive, and may not do so arbitrarily, capriciously or in a manner
inconsistent with the reasonable expectations of the parties.” Id.
In the instant action, the breach of duty of good faith and fair dealing claims
fail at the outset since Defendants have failed to allege facts showing that they were
parties to the relevant agreements or third-party beneficiaries. In addition,
Defendants fail to allege facts to show that the duty would be implied in an pertinent
agreement. Defendants contend that the Guarantees provided Ventas and CCP with
discretion to bring a suit based on a breach of the Guarantees and discretion to collect
certain securities. Defendants, however, have failed to specifically identify any
specific language in the Guarantees that would confer such discretion on Ventas or
that any such discretion is the type that would trigger the implied duty of good faith
and fair dealing. The right to bring suit was merely a right to make a choice and was
not an obligation for either side of any agreement. Therefore, Ventas’ motion to
dismiss the claims brought against Ventas in Count 7 granted. For the same reasons,
CCP’s motion to dismiss the claims brought against CCP in Count 7 is granted.

VI. Negligent Misrepresentation Claims (Count 8)
Ventas moves to dismiss the negligent misrepresentation claims in Count 8.
Defendants allege that Ventas made misrepresentations that the financial statements
for Kindred were truthful and accurate and Ventas was negligent in ascertaining the
accuracy of the information in the financial statements. (CC/TPC 13-88-89). Ventas
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argues that the allegations are contrary to statements made in a certain confidentiality
agreement (Confidentiality Agreement) signed by Defendants. The Confidentiality
Agreement is not specifically referenced in the counterclaim and third-party
complaint and Ventas has not shown it to be central to Defendants’ claims. The
document is thus beyond the pleadings and it is premature at this juncture to consider
such evidence. Ventas also makes certain arguments concerning whether they ever
represented that the Kindred financial statements were accurate or merely provided
them to Defendants. Ventas, in making such arguments, however, is making
arguments concerning the merits of Defendants’ claims and reaches beyond the
pleadings. However, Defendants in signing the “Acknowledgment and
Reaffirmation of Personal Guarantors” with the TTA, agreed to release claims such
as the negligent misrepresentation claims. Therefore, Ventas’ motion to dismiss the
claims brought against Ventas in Count 8 is granted. For the same reasons, CCP’s
motion to dismiss the claims brought against CCP in Count 8 is granted.

CONCLUSION
Based on the foregoing analysis, CCP’s motion to dismiss and motion to strike
is granted, and Ventas’ motion to dismiss is granted. The motion to dismiss brought
by Doman and Jacoby is stricken as moot.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: August 17, 2017
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