Judge: Ashfaq G. Chowdhury, Case: 23GDCV00580, Date: 2025-01-16 Tentative Ruling
Case Number: 23GDCV00580 Hearing Date: January 16, 2025 Dept: E
Case No: 23GDCV00580
Hearing Date: 1/16/2025
Trial Date: 06/01/2026
Case Name: RECONSTRUCTION EXPERTS
[TENTATIVE RULING ON
DEMURRER & MOTION TO STRIKE]
Moving Party: Plaintiff/Cross-Defendant,
Reconstruction Experts, Inc. (Reconstruction Experts or RE or Cross-Defendant)
Responding Party: Defendant/Cross-Complainant, The Excelsior at
the Americana at Brand Homeowners’ Association (Excelsior or Cross-Defendant)
Moving Papers: Notice; Memorandum; Thomas F. Olsen
Declaration; Proposed Order; Declaration of Service
Opposition Papers: Opposition
Reply Papers: Reply
Proof of Service Timely Filed (CRC Rule
3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok
Meet and Confer
A party filing a
demurrer “shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (Code Civ.
Proc., §430.41, subd. (a).) “The parties
shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., §430.41, subd. (a)(2).)
Failure to sufficiently
meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ.
Proc., §430.41(a)(4).)
Here, Reconstruction
Experts’ counsel met and conferred. (Olsen Decl. ¶ 3.)
RELIEF REQUESTED
Plaintiff and
Cross-Defendant, Reconstruction Experts, pursuant to CCP § 430.10(e) & (f) demur
to the below causes of action set forth in the First Amended Cross-Complaint
(FACC) filed by Excelsior as follows:
GENERAL DEMURRER TO THE
EIGHTH CAUSE OF ACTION
(Tortious Breach of Contract)
Demurrer pursuant to
Code of Civil Procedure section 430.10 subsection (e), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
“Tortious Breach of Contract” because the cause of action fails to adequately plead
each required element and is barred by the economic loss doctrine.
SPECIAL DEMURRER TO THE
EIGHTH CAUSE OF ACTION
(Tortious Breach of
Contract)
Demurrer pursuant to
Code of Civil Procedure section 430.10 subsection (f), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
“Tortious Breach of Contract” because the cause of action was not plead with requisite
specificity making the eighth cause of action vague, ambiguous and uncertain.
GENERAL DEMURRER TO THE
SECOND CAUSE OF ACTION
(Negligence-
Pre-Construction)
Demurrer pursuant to
Code of Civil Procedure section 430.10 subsection (e), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
“Negligence- Pre-Construction” because the cause of action is barred by the
economic loss doctrine.
GENERAL DEMURRER TO THE THIRD CAUSE OF ACTION
(Fraud)
Demurrer pursuant to
Code of Civil Procedure section 430.10 subsection (e), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
“Fraud” because the cause of action is barred by the economic loss doctrine.
GENERAL DEMURRER TO THE
FOURTH CAUSE OF ACTION
(Negligent
Misrepresentation)
Demurrer pursuant to Code of Civil Procedure
section 430.10 subsection (e), on the grounds that Excelsior failed to state
facts sufficient to constitute a cause of action for “Negligent
Misrepresentation” because the cause of action is barred by the economic loss
doctrine.
GENERAL DEMURRER TO THE
SIXTH CAUSE OF ACTION
(Negligence)
Demurrer pursuant to
Code of Civil Procedure section 430.10 subsection (e), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
“Negligence” because the cause of action is barred by the economic loss doctrine.
GENERAL DEMURRER TO THE
TENTH CAUSE OF ACTION
(Violation of Penal Code
Section 496)
Demurrer pursuant to
Code of Civil Procedure section 430.10, subsection (e), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
violation of Penal Code section 496 because such a claim is not proper in a commercial
contract and is barred by the economic loss doctrine.
GENERAL DEMURRER TO THE
NINTH CAUSE OF ACTION
(Violation of Business
& Professions Code section 17200)
Demurrer pursuant to
Code of Civil Procedure section 430.10 subsection (e), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
violation of Business and Professions Code section 17200, 7108, 7109, 7110, 7113,
7119, and 7160 because Excelsior fails to plead standing to bring such a claim.
SPECIAL DEMURRER TO THE
NINTH CAUSE OF ACTION
(Violation of Business
& Professions Code section 17200)
Demurrer pursuant to
Code of Civil Procedure section 430.10 subsection (f), on the grounds that
Excelsior failed to state facts sufficient to constitute a cause of action for
violation of Business and Professions Code section 17200, 7108, 7109, 7110, 7113,
7119, and 7160 because Excelsior failed to include charging allegations, thus,
rendering the ninth cause of action uncertain and ambiguous.
Reconstruction Experts’
demurrer to the second, third, fourth, sixth, eighth, ninth and tenth causes of
action in Excelsior’s first amended cross-complaint will be based on this
notice of demurrer and demurrer, the concurrently filed memorandum in support,
the concurrently filed declaration of Thomas F. Olsen, all papers, pleadings,
proceedings, records, and files in this action, and such further oral and/or
documentary evidence as may be presented before or at the hearing on this
demurrer.
(RE Notice, p. 2-3.)
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of
Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law ….” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.)
In a demurrer proceeding, the defects must be apparent on the face of
the pleading or via proper judicial notice.
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed. (Code Civ. Proc., §§ 430.30,
430.70.) The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action. (Hahn, supra, 147
Cal.App.4th at 747.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.”
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally it is an abuse of
discretion to sustain a demurrer without leave to amend if there is any
reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.)
Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored
and will only be sustained where the pleading is so bad that defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against
him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Ibid.)
ANALYSIS
Eighth Cause of Action – Tortious Breach of Contract
As
a preliminary matter, although RE’s Notice page demurred on grounds of failure
to state facts sufficient to constitute a cause of action because the FACC
fails to adequately plead each required element, RE’s demurrer made no
arguments as to this basis for the demurrer. RE makes no arguments and cites no
legal authority as to what the required elements are for tortious breach of
contract are; nor does RE argue what required elements Excelsior failed to
allege.
Thus, the Court does not find this argument availing.
Despite RE demurring on grounds of failure to plead
each required element for a tortious breach of contract cause of action, RE also
argues that tortious breach of contract is not a standalone cause of action.
RE cites to Erlich v. Menezes (1999) 21 Cal.4th
543, 552 to argue that tortious breach of contract is not recognized as a
standalone cause of action; however, that citation does not explicitly state
what RE argues. Further, RE argues that the allegations for tortious breach of
contract do not establish a duty independent of the contract and therefore
Excelsior fails to sufficiently plead the required elements sufficient for tort
remedy.
Erlich v. Menezes states:
Generally, outside the insurance context,
“a tortious breach of contract ... may be found when (1) the breach is
accompanied by a traditional common law tort, such as fraud or conversion; (2)
the means used to breach the contract are tortious, involving deceit or
undue coercion or; (3) one party intentionally breaches the contract intending
or knowing that such a breach will cause severe, unmitigable harm in the form
of mental anguish, personal hardship, or substantial consequential
damages.” (Freeman & Mills, supra, 11 Cal.4th at p.
105 (conc. and dis. opn. of Mosk, J.).) Focusing on intentional conduct
gives substance to the proposition that a breach of contract is tortious only
when some independent duty arising from tort law is violated. (Applied
Equipment, supra, 7 Cal.4th at p. 515.) If every negligent
breach of a contract gives rise to tort damages the limitation would be
meaningless, as would the statutory distinction between tort and contract
remedies.
(Erlich v. Menezes
(1999) 21 Cal.4th 543, 553-554.)
Here, the Court does not
find RE’s arguments availing. Here, in the FACC, the breach is accompanied by a
traditional common law tort such as fraud as alleged in the third cause of
action.
Further, the Court notes
that RE’s reliance on Erlich v. Menezes is not entirely on point because
that case was at a complete different procedural posture. For example, in Erlich,
the jury concluded that Menezes did not act intentionally, nor was he guilty of
fraud or misrepresentation. Here, this case is at the pleading stage, and there has been no
factual determination as to Excelsior’s fraud allegations.
Additionally, RE’s arguments about the punitive
damages request with respect to a cause of action for tortious breach of
contract are unavailing as those arguments are inapplicable for a demurrer
hearing. Further, the Court notes that RE did not move to strike punitive
damages.
TENTATIVE RULING EIGHTH CAUSE OF ACTION
RE’s
demurrer to the eighth cause of action for tortious breach of contract, based
on the arguments asserted on page 3, lines 15-28, page 4, and page 5, lines 1-8
of RE’s demurrer, is OVERRULED.
TENTATIVE RULING Second, Third, Fourth,
Sixth, Eighth, and Tenth Causes of Action
RE
argues that the second, third, fourth, sixth, eighth, and tenth causes of
action are barred by the economic-loss rule because they are tort claims based
on contractual duties.
The Court does not find this argument availing.
First, the tenth cause of action is a statutory cause
of action.
Second, the second, third, fourth, sixth, and eighth
causes of action are based on independent torts; they are not based on
contractual duties.
Third, RE cites cases that are at a different
procedural posture than the pleading stage.
Fourth, RE argues that Excelsior “attempts” to plead
property damages but the only allegeable damages are purely economic. The Court
does not find this argument availing. The FACC pleads property damage for these
causes of action at ¶¶ 418, 780, 794, 907, and 938. Therefore, for purposes of
a demurrer, the Court accepts these allegations as true. RE cannot determine
for Excelsior what the types of damages are at the pleading stage. As the Court
previously noted, the cases cited by RE determining the types of damages
sustained were not at the pleading stage.
RE's demurrer to the second, third, fourth, sixth,
eighth, and tenth causes of action are OVERRULED.
TENTATIVE RULING NINTH CAUSE OF ACTION
Excelsior’s
ninth cause of action is for violation of Business and Professions Code § 17200
as a result of the breach of business and professions code § 7108, 7109, 7110,
7113, 7116, 7119, and 7160.
RE argues that Excelsior lacks standing to sue under
B&P §§ 7108, 7109, 7110, 7113, 7116, and 7119 because those sections
provide no private right of action for civil damages. RE argues that those
sections fall within the responsibility of the Contractors’ Licensing Board to
sanction such misconduct. RE also argues
that Excelsior lacks standing to sue under B&P § 7160 because such section
is limited to a natural person under section 7150 and “person” as used in that
article is limited to natural persons.
The Court does not find RE’s arguments availing.
“ ‘The “unlawful” practices prohibited by … section
17200 are any practices forbidden by law, be it civil or criminal, federal,
state, or municipal, statutory, regulatory, or court-made. [Citation.] It is
not necessary that the predicate law provide for private civil enforcement.
[Citation.] As our Supreme Court put it, section 17200 “borrows” violations of
other laws and treats them as unlawful practices independently actionable under
section 17200 et seq.’” (South Bay Chevrolet v. General Motors Acceptance
Corp. (1999) 72 Cal.App.4th 861, 880 citing Hewlett v. Squaw Valley Ski
Corp. (1997) 54 Cal.App.4th 499, 531-532.)
Therefore, since § 17200 borrows violations of other
laws and treats them as unlawful under § 17200, and because it is not necessary
that the predicate law provide for private civil enforcement, RE’s arguments
are unavailing.
Further, RE cites cases like Settimo Associates v.
Environ Systems, Inc. (1993) 14 Cal.App.4th 842 and Swickheimer v. King
(1971) 22 Cal.App.3d 220 to support its argument; however, those cases do not
deal with § 17200. Therefore, RE’s arguments are unavailing.
Further, RE’s argument that the FACC did not allege
any specific practice that violated the UCL and identify how it is unlawful,
unfair, or fraudulent or explain how the practice caused Excelsior’s damage is
unavailing. The FACC identifies each statute that Excelsior is alleging RE
violated. Further, to the extent RE argues that Excelsior didn’t allege injury
in fact, Excelsior pointed to the injury in fact in ¶¶ 970 and 997 of the FACC.
Therefore, RE’s argument
that the demurrer should be sustained on grounds of uncertainty and ambiguity
because Excelsior did not allege any predicate offenses for the unlawful prong,
the Court find this argument unavailing. Excelsior precisely identified the
exact predicate statutory offenses forming the basis of the unlawful prong of
17200 - business and professions code § 7108, 7109, 7110, 7113, 7116, 7119, and
7160.
RE's demurrer to the ninth cause of action is
OVERRULED.
TENTATIVE RULING TENTH CAUSE OF ACTION –
Violation of Penal Code § 496
Excelsior’s
tenth cause of action is for violation of Penal Code § 496.
RE argues that the tenth cause of action is a breach-of-contract
cause of action. Further, RE argues that under § 496 the property must have
already been stolen property when received by RE.
The Court does not find RE’s arguments availing.
As a preliminary matter, a criminal conviction under Penal
Code § 496(a) is not a prerequisite to recovery of treble damages under § 496(c).
(Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1043.)
Although RE argues that the property must have already
been stolen when RE received it, the Court does not find this argument
availing. “Section 496(a) extends to property “that has been obtained in any
manner constituting theft.” (Bell v. Feibush (2013) 212 Cal.App.4th
1041, 1048.)
“Thus, a person who obtains property by theft may be
convicted for theft or for receiving stolen property, but not both.” (Bell
v. Feibush (2013) 212 Cal.App.4th 1041, 1049 citing People v. Allen (1999)
21 Cal.4th 846, 857-61,89.)
Further, under the express language of Penal Code §
496(a), “A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted both pursuant to
this section and of the theft of the same property.” (Ibid.)
Therefore, RE’s argument that the property must have
already been stolen under 496 is unavailing. Likewise, RE’s argument that the
plaintiff must allege that defendant knew the property was stolen at the time
it was received is unavailing because a plaintiff does not have to receive
stolen property, because as explained above, the person who commits the actual
theft can be held liable under 496.
RE's demurrer to the tenth cause of action is
OVERRULED.
TENTATIVE RULING ON
MOTION TO STRIKE
RELIEF REQUESTED
“Plaintiff and
Cross-Defendant Reconstruction Experts, Inc. (“RE”) will, and hereby does, move
to strike the verification of the first amended cross-complaint filed on July
7, 2024 (“First Amended Cross-Complaint”), by The Excelsior at The Americana at
Brand Homeowners’ Association (“Excelsior”). Excelsior attempts to verify the
First Amended Cross-Complaint, 1169 paragraphs long, by way of the declaration
of Mr. Milisav Llic (“Llic Declaration”). The Llic Declaration was neither
drawn nor signed in conformity with Code of Civil Procedure section 2015.5,
does not support a perjury charge, contains allegations that cannot be the
subject of a verified pleading, states conclusions and opinions, wrongfully
attempts to verify fraud, lacks personal knowledge, and fails to state an
underlying basis for allegations based on “information and belief”. Thus, as
set forth in RE’s motion, the Llic Declaration is false, improper, and not
drawn or filed in conformity with California law. The “verification” of the
First Amended Cross-Complaint and the entire “verified” First Amended
Cross-Complaint therefore are subject to be stricken in full pursuant to Code
of Civil Procedure section 435 and 436.”
(RE Notice, p. 1-2.)
PROCEDURAL
Moving Party: Plaintiff/Cross-Defendant, Reconstruction
Experts, Inc. (Reconstruction Experts or RE or Cross-Defendant)
Responding Party: Defendant/Cross-Complainant,
The Excelsior at the Americana at Brand Homeowners’ Association
(Cross-Complainant or Excelsior)
Moving Papers: Notice;
Memorandum; Thomas F. Olsen Declaration; Request for Judicial Notice; Proposed
Order; Declaration of Service
Opposition Papers: Opposition
Reply Papers: Reply
Proof of Service
Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok
Meet and Confer
Before filing a motion
to strike pursuant to this chapter, the moving party shall meet and confer in
person or by telephone with the party who filed the pleading that is subject to
the motion to strike for the purpose of determining if an agreement can be
reached that resolves the objections to be raised in the motion to strike. If
an amended pleading is filed, the responding party shall meet and confer again
with the party who filed the amended pleading before filing a motion to strike
the amended pleading. (CCP §435.5(a).)
Here,
RE’s counsel alleged that a meet and confer occurred. (Olsen Decl. ¶4.)
Legal Standard Motion to Strike
The court may, upon a motion, or at any time in
its discretion, and upon terms it deems proper, strike any irrelevant, false,
or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the
grounds that a complaint fails to state facts sufficient to constitute a cause
of action, but instead is properly based on grounds of superfluous or abusive
allegations, or improprieties in form or procedure. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509,
528-29.)
The grounds for moving
to strike must appear on the face of the pleading or by way of judicial
notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of
Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read
allegations of a pleading subject to a motion to strike as a whole, all parts
in their context, and assume their truth”].)
Further, CCP
§431.10(a)-(c) states as follows:
(a) A material allegation in a pleading is one essential
to the claim or defense and which could not be stricken from the pleading
without leaving it insufficient as to that claim or defense.
(b) An immaterial allegation in a pleading is any of the
following:
(1) An allegation that is not essential to the statement
of a claim or defense.
(2) An allegation that is neither pertinent to nor supported
by an otherwise sufficient claim or defense.
(3) A demand for judgment requesting relief not
supported by the allegations of the complaint or cross-complaint.
(c) An “immaterial allegation” means “irrelevant matter”
as that term is used in Section 436.
(CCP §431.10(a)-(c).)
ANALYSIS
CCP § 2015.5
RE argues that the verification of Excelsior
attached to the First Amended Cross-Complaint (FACC) must be stricken because under
2015.5, Excelsior’s verification must include the place of execution.
The Court does not find RE’s argument availing.
Excelsior’s verification states as follows:
I Milisav
Ilic, am the President of the Excelsior at the Americana at Brand Homeowners'
Association. I have read the foregoing First Amended Cross-Complaint and know
the contents thereof and the exhibit attached thereto. The same is true of my
own knowledge and/or knowledge obtained from other board members in my capacity
as the President of the Excelsior at the Americana at Brand Homeowners'
Association and, except as to those matters that are therein alleged on
information and belief, and as to those matters, I believe them to be true.
I declare
under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
(FACC, p. 145.)
Further, the Court notes that the verification is signed by Milisav
Ilic, President of the Excelsior at the Americana at Brand Homeowners’
Association.
RE’s argument is unavailing, as RE only cited a portion of CCP §
2015.5. If RE had cited the entirety of 2015.5, RE would have seen that a
“place of execution” does not have to be included in the verification.
As stated in CCP § 2015.5:
Whenever,
under any law of this state or under any rule, regulation, order or requirement
made pursuant to the law of this state, any matter is required or permitted to
be supported, evidenced, established, or proved by the sworn statement,
declaration, verification, certificate, oath, or affidavit, in writing of the
person making the same (other than a deposition, or an oath of office, or an
oath required to be taken before a specified official other than a notary
public), such matter may with like force and effect be supported, evidenced,
established or proved by the unsworn statement, declaration, verification, or
certificate, in writing of such person which recites that it is certified or
declared by him or her to be true under penalty of perjury, is subscribed by
him or her, and (1), if executed within this state, states the date and place
of execution, or (2), if executed at any place, within or without
this state, states the date of execution and that it is so certified or
declared under the laws of the State of California. The certification or
declaration may be in substantially the following form:
(a) If
executed within this state:
“I certify
(or declare) under penalty of perjury that the foregoing is true and correct”:
_____________ _________
(Date and Place)(Signature)
(b) If
executed at any place, within or without this state:
“I certify
(or declare) under penalty of perjury under the laws of the State of California
that the foregoing is true and correct”:
_____________ _________
(Date)(Signature)
(CCP § 2015.5, [emph added].)
Here, the verification attached to the FACC appears to comply with § 2015.5(b)
and does not appear to need to include the place of execution.
CCP § 446
RE argues that the verification attached to
the FACC does not comply with CCP § 446. Although not entirely clear, RE
appears to be arguing that the person signing the verification did not show
personal knowledge.
RE’s arguments with respect to CCP § 446 are unavailing.
In relevant part of CCP § 446(a), “In all cases of a verification of a
pleading, the affidavit of the party shall state that the same is true of his
own knowledge, except as to the matters which are therein stated on his
or her information or belief, and as to those matters that he or she believes
it to be true; and where a pleading is verified, it shall be by the
affidavit of a party, unless the parties are absent from the county where the
attorney has his or her office, or from some cause unable to verify it, or the
facts are within the knowledge of his or her attorney or other person verifying
the same.” (CCP § 446(a), [emph. added.].)
Further, RE failed to cite the following portion of 446(a) which
states, “A person verifying a pleading need not swear to the truth or his or
her belief in the truth of the matters stated therein but may, instead, assert
the truth or his or her belief in the truth of those matters “under penalty of
perjury.” (CCP § 446(a).)
Here, the FACC’s verification appears to comply with CCP § 446;
therefore, RE’s arguments are unavailing.
Miscellaneous
RE also argues that the verification to the
FACC must be stricken because: (1) Mr. Ilic cannot verify as true and accurate
the state of mind and subjective intent of third parties; (2) the Ilic
declaration cannot support a perjury review, (3) the Ilic declaration recites
conclusions and opinions, (4) the fraud declaration is improper, (5) the Ilic
declaration is devoid of personal knowledge, (6) and the Ilic declaration fails
to state an underlying basis for allegations based on information and belief.
The Court does not find RE’s arguments availing. RE cites case law
that is inapposite, out of context, or not at the same procedural posture as
the instant case.
TENTATIVE RULING
Cross-Defendant, Reconstruction Experts’,
motion to strike the verification of the First Amended Cross-Complaint is
DENIED.
RE requested judicial notice of the FACC. The Court grants judicial
notice.