Judge: Alison Mackenzie, Case: 23STCV15082, Date: 2024-03-13 Tentative Ruling
Case Number: 23STCV15082 Hearing Date: March 13, 2024 Dept: 55
NATURE OF PROCEEDINGS:
Demurrer of Defendant Michael Nader to Plaintiff's Complaint; Motion Thereof to
Strike Plaintiff's Complaint.
The demurrer is sustained, and the motion is granted, with
20 days’ leave to amend.
BACKGROUND
In this case, DANIEL DAVIDSON (“Plaintiff”) seeks
damages against Defendants MICHAEL NADER (“Defendant Nader”) and DALE W ASHINGTON
(“Defendant Washington”) in connection with a rehab center run by Plaintiff and
Defendant Nader, and alleged legal malpractice committed by Defendant
Washington. The causes of action are: 1) Trespass to Chattel; 2) Threats; 3) Breach
of Fiduciary Duty; and 4) Professional Malpractice. Plaintiff asserts the first
and second claims against Defendant Nader.
Defendant Nader brings (1) a demurrer to the Complaint’s first and second causes of action, including because allegations are uncertain, and (2) a motion to strike allegations regarding punitive damages and unsupported claims. Plaintiff has filed a response declaration from an attorney stating that the Complaint could be amended by substituted-in counsel.
LEGAL STANDARD
In order to obtain leave to amend, complainants must
state how the allegations would be amended in order to state a cause of
action. Drum v. San Fernando Valley
Bar Ass'n (2010) 182 Cal.App.4th
247, 253. Courts generally allow at least one time to amend a complaint, after
sustaining a demurrer even without any request for leave to amend. McDonald v. Sup. Ct. (1986) 180
ANALYSIS
The Court agrees with Defendant Nader that the claims
for trespass to chattel and assault lack sufficient factual allegations. The
Court also agrees that the Complaint contains no facts to support Plaintiff’s
request for punitive damages. Plaintiff did not contest these arguments, and in
fact acknowledges that the Complaint has “many deficiencies.” The issue for the
Court is whether to allow leave to amend.
Pursuant to the response declaration of substitute counsel, filed
3/1/24, offering to amend the Complaint written by a self-represented litigant,
the Court finds that there is a reasonable possibility of successful amendment.
CONCLUSION
The demurrer is sustained and the motion is granted with
leave to amend.