Judge: Ashfaq G. Chowdhury, Case: 23GDCV01703, Date: 2024-02-02 Tentative Ruling

Case Number: 23GDCV01703    Hearing Date: February 2, 2024    Dept: E

Case No: 23GDCV01703
Hearing Date: 02/02/2024 – 8:30am

Trial Date: UNSET

Case Name: SLY SPECTRUM, LLC, a Texas limited liability company, v. ABEDIAN &TOTLIAN, AN ACCOUNTANCY CORPORATION, a California professional corporation; EMIL ABEDIAN, an individual; and DOES 1-40

[TENTATIVE RULING ON DEMURRER & MOTION TO STRIKE]

Moving Party: Defendants, Abedian & Totlian, an Accountancy Corporation and Emil Abedian

Responding Party: Plaintiff, Sly Spectrum LLC, a Texas limited liability company

Moving Papers: Notice/Demurrer; Request for Judicial Notice; Proposed Order; Notice of Errata re: Request for Judicial Notice

Opposition Papers: Opposition; Proof of Service; Request for Judicial Notice

Reply Papers: Reply; Evidentiary Objections to Plaintiff’s Request for Judicial Notice

RELIEF REQUESTED
Defendants, Abedian & Totlian, an Accountancy Corporation, and Emil Abedian, demurrer to Plaintiff’s FAC pursuant to CCP §§ 430.10 and 431.31.

Defendants demur to both causes of action in the FAC on grounds that the claims fail as the individual defendants are improper parties and on grounds that both causes of action fail to state facts sufficient to constitute a cause of action and are unintelligible as pled.

BACKGROUND
Plaintiff filed its initial Complaint on 08/11/2023.

On 09/29/2023, Plaintiff filed the FAC alleging two causes of action – (1) Professional Negligence, and (2) Aiding & Abetting a Tort.

PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule 3.1300): 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.”  (CCP § 430.41(a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

Here, Defendants’ counsel alleged he met and conferred. (Pearse Decl. ¶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 § 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
Preliminary Matter
As a preliminary matter, the demurrer and the opposition are, int the Court’s view, somewhat unclear.

The Court will attempt to address the arguments asserted in demurrer and opposition that it is able to decipher.

Statute of Limitations

To sustain a demurrer based on a statute-of-limitations defense, the running of the statute must appear “clearly and affirmatively” from the face of the complaint; it is not enough that the complaint may be time-barred. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4ths 32, 42, citing and quoting Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781:

“We conclude the demurrer in the present case should have been overruled. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403, 44 Cal.Rptr.2d 339.).

(Geneva Towers, 29 Cal.4th at 781.)

As set forth by the California Supreme Court in Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803, “under the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause...”

Once the bar of the statute is raised by the pleading, the California Supreme Court  requires a plaintiff to plead facts concerning the discovery:

In order to rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery, and (2) the inability to have made earlier discovery despite reasonable diligence.  In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to show diligence; conclusory allegations will not withstand demurrer.

Fox, 35 Cal.4th at 808 (internal quotations, citations omitted). 

The issue of  “‘[r]esolution of the statute of limitations issue is normally a question of fact.’” (E-Fab, Inc. v. Accountants, Inc. Services) (2007) 153 Cal.App.4th 1308, 1320 [quoting Fox, 35 Cal.4th at 810].). The court of appeal in E-Fab went on to observe: “More specifically, as to accrual, ‘once properly pleaded, belated discovery is a question of fact.’” (E-Fab, 153 Cal.App.4th at 1320, quoting Bastian v. County of San Luis Obispo (2nd Dist. 1988) 199 Cal.App.3d 520, 527. )

Both parties here seem to agree that the statute of limitations for professional negligence is two years.

Defendants argue the professional negligence claim is barred under the two-year statute of limitations because Plaintiff alleges it discovered the negligence dating back to May 15, 2021, and since the initial Complaint was filed on 08/11/2023, the professional-negligence claim is barred because it was filed more than two years after May 15, 2021.

In particular, in ¶¶15-16, Plaintiff alleges :

15. On or about May 15, 2021, Dortch discovered what PLAINTIFF is informed and believes, and based thereon alleges, constitute multiple accounting irregularities at Part Four, including unlawful tax deductions, converting personal debt for Joshua from 2014 to capital debt for an entity that does not even exist until November of 2015, a negative capital account for Part Four member Rebel Bass LLC (“Rebel”) (single member entity owned by Joshua) which had been overdrawn repeatedly, negative each year from 2015 to 2020, and inaccurate allocations of pass-through capital from the first round of forgiven PPP loans, of which PLAINTIFF was a co-signer and arranged the loans through sourcing and introducing new a banking relationship to the Part Four partnership after Joshua failed in his efforts to secure a loan in the first-round.

16. On or about May 15, 2021, Dortch called and confronted Abedian regarding the negative capital accounts of Rebel, during which ABEDIAN admitted the negative capital account, and informed Dortch he would need to speak with Joshua regarding the matter because ABEDIAN just “does what he’s told.”

(FAC ¶15-16.)

In Opposition, Plaintiff argues:

Contrary to Defendant’s arguments in the Demurrer about their improper accounting practices discovered by Plaintiff’s sole manager and member, Jonanthan Dortch (“Dortch”) in May 2021, the acts upon which Plaintiff premises its causes of action occurred on (a) September 29, 2021 (improper filing of the Part IV statement of information, see FAC ¶ 21), (b) November 2, 2021 (failure to provide tax return, see FAC ¶¶ 23-24), (c) September 1, 2022 (the filing of the 2021 tax return for Part Four, see FAC ¶ 30), and (d) August 28, 2023 (filing of the 2022 tax return for Part Four, see FAC ¶ 33). All of these acts occurred within two (2) years of August 11, 2023 (the date Plaintiff commenced this action), or after. Plaintiff alleges the conversion of its capital account held by and membership interest in Part IV occurred on September 1, 2021 (FAC ¶ 19), which is within three (3) years of August 11, 2023. Thus, focusing on the negligent acts and the conversion aided and abetted by Defendants, as opposed to the discovery of Defendants’ improper accounting practices in May 2021 that is the focus of Defendants’ demurrer, it is apparent that neither of Plaintiff’s claims are time-barred. Accordingly, the Demurrer should be overruled.

(Oppo. p. 8.)

As stated in Fox.:

Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements.” (Norgart, supra, 21 Cal.4th at p. 397, 87 Cal.Rptr.2d 453, 981 P.2d 79; see Neel v. Magana, Olney, Levy, Cathcart & Gelfand 1971) 6 Cal.3d 176, 187, 98 Cal.Rptr. 837, 491 P.2d 421 (Neel ).) An important exception to the general rule of accrual is the “discovery rule,” which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Norgart, supra, 21 Cal.4th at p. 397, 87 Cal.Rptr.2d 453, 981 P.2d 79; Neel, supra, 6 Cal.3d at p. 187, 98 Cal.Rptr. 837, 491 P.2d 421.)

A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.” (Norgart, supra, 21 Cal.4th at p. 398, 87 Cal.Rptr.2d 453, 981 P.2d 79, citing Jolly, supra, 44 Cal.3d at p. 1110, 245 Cal.Rptr. 658, 751 P.2d 923; see also Gutierrez v. Mofid, supra, 39 Cal.3d at p. 897, 218 Cal.Rptr. 313, 705 P.2d 886 [“the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim”].) Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. (Norgart, supra, 21 Cal.4th at p. 398, fn. 3, 87 Cal.Rptr.2d 453, 981 P.2d 79; Jolly, supra, 44 Cal.3d at p. 1112, 245 Cal.Rptr. 658, 751 P.2d 923.) Norgart explained that by discussing the discovery rule in terms of a plaintiff's suspicion of “elements” of a cause of action, it was referring to the “generic” elements of wrongdoing, causation, and harm. (Norgart, supra, 21 Cal.4th at p. 397, 87 Cal.Rptr.2d 453, 981 P.2d 79.) In so using the term “elements,” we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.

(Fox, 35 Cal.4th at 806-807.)

Here, the Court will hear argument as to the issue of the statute of limitations for the professional negligence claim.

At first glance, the Court is inclined to agree with Defendants’ arguments because Plaintiff appears to admit that it discovered multiple accounting irregularities on May 15, 2021. Therefore, based on the May 15, 2021 date, Plaintiff appears to be outside the two-year statute of limitations since it filed its initial Complaint on 08/11/2023.

In its Opposition, Plaintiff did not address the issue that its FAC admits that it discovered accounting irregularities on May 15, 2021. Instead, the Opposition ignores the date that would bar the claim and instead on page 8 of the Opposition refers to conduct that would fall within the two-year statute of limitations.

Defendants don’t address the portion of Fox that notes that, “Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements.”  (Fox, 35 Cal.4th at 806.)  Defendants do not make it clear when all of the elements were complete.

To sustain a demurrer based on a statute-of-limitations defense, the running of the statute must appear “clearly and affirmatively” from the face of the complaint; it is not enough that the complaint may be time-barred. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4ths 32, 42, citing and quoting Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.)

The Court also has some qualms about sustaining the demurrer based on the statute-of-limitations because Defendant does not demonstrate clearly and affirmatively that the cause of action is time-barred.

Further, as to the second cause of action for aiding and abetting a tort, moving Defendants make no arguments as to whether the second cause of action is time-barred. The Opposition argues, nevertheless, that the second cause of action is not time-barred.  Whether the second cause of action may also be time-barred appears to be an issue that remains somewhat confused in the papers. The Court will hear further from the parties on this point.

Professional Negligence
Defendants argue that Plaintiff has no standing to pursue breaches to a duty owed to Part Four on pages 6-7. These arguments are somewhat unclear. Defendants cite case law on shareholder liability and derivative suits, and it is unclear what arguments Defendants are trying to assert.

Defendants also state that the elements of a cause of action for professional negligence are : “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Turpin v Sortini (1982) 31 Cal.3d 220, 229-230, [quoting Budd v. Nixon (1971) 6 Cal.3d 195, 200].)

Defendants argue that the duty at issue belongs to Part Four, not Plaintiff,  and that the alleged wrongful acts are not actionable breaches.

This argument may be correct, but the Court will ask both parties to further address this point at the hearing.

Aiding and Abetting
The Court is also not entirely clear as to what Defendants are arguing as to aiding and abetting. Defendants argue that Plaintiff doesn’t allege substantial assistance and encouragement; however, it appears that Plaintiff alleges this in ¶42 of the FAC.

Further, the Court is unclear as to Defendants’ arguments about the individually named employees not being proper parties.

The Court will hear further argument on these points.

TENTATIVE RULING
The Court’s tentative is to sustain the Demurrer, but the Court will consider the parties’ arguments at the hearing.

Leave to Amend

As stated in Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-71:

If the complaint, liberally construed, can state a cause of action, or if it is reasonably possible that the plaintiffs can cure the complaint by amendment, the trial court should not sustain a demurrer without leave to amend. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486 [229 Cal.Rptr. 324, 723 P.2d 64].) The burden is on the plaintiffs to establish the reasonable possibility that the defect is curable. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) A demurrer is properly sustained without leave to amend if it appears that under applicable substantive law there is no reasonable possibility that *1571 an amendment could remedy the defects. (Heckendorn v. City of San Marino, supra, 42 Cal.3d at p. 486.)

(Dalton, 18 Cal.App.4th at 1570-71.)

Request for Judicial Notice
Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:

(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.

(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.

(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.

(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.

(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

(Evidence Code §452.)

The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

(Evidence Code §453.)

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.)  However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).) 

Defendants request judicial notice of:

Complaint filed by Jonathan Dorch and Sly Spectrum, LLC in Dortch, et al. v. Golsen, et al. (Los Angeles County Superior Court Case No. 21STCV29695 on August 11, 2021) – a true and complete copy of which is attached hereto as Exhibit 1.

Defendants also filed a notice of errata re: judicial notice.

Defendants’ notice of errata indicates that Exhibit 1 in the initial request for judicial notice was filed incorrectly and that Defendants instead intended to request judicial notice of Exhibit A in the notice of  errata.

Here, the Court DENIES Defendants’ request for judicial notice in the notice of errata. Exhibit A in the notice of errata is a complaint filed in a matter not before this Court. The Court is entirely unclear as to why the request is relevant to the instant action.

Plaintiff requests judicial notice of the following:

1. United States v. Miller (9th Cir. 1976) 545 F.2d 1204, a true and correct copy of which is attached hereto as Exhibit “A” and incorporated herein by this reference;

2. The articles of organization for Part Four LLC filed on January 31, 2014, a true and correct copy of which is attached hereto as Exhibit “B” and incorporated herein by this reference;

3. The statement of information for Part Four LLC filed on September 30, 2021, a true and correct copy of which is attached hereto as Exhibit “C” and incorporated herein by this reference; and

4. The statement of information for Defendant ABEDIAN & TOTLIAN, AN ACCOUNTANCY CORPORATION, filed on January 24, 2022, a true and correct copy of which is attached hereto as Exhibit “D” and incorporated herein by this reference.

The Court is inclined to deny Plaintiff’s request for judicial notice—with the exception of the Miller case. The Court will hear argument.

The Court notes that Defendants submitted evidentiary objections to Plaintiff’s request for judicial notice and a proposed order as to the ruling on those evidentiary objections.

MOTION TO STRIKE

RELIEF REQUESTED
Defendants move to strike the Plaintiff’s entire FAC pursuant to 435, 435.5, 436, and 437.

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)):Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

Moving Papers: Notice/Motion to Strike; Proposed Order

Opposition Papers: Opposition; Proof of Service;

Reply Papers: Reply

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).)

The Court notes as follows, “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (CCP §435.5(a)(4).)

Defendants met and conferred. (Pearse Decl. ¶¶2-3.)

Legal Standard – Motion to Strike
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

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”].)  

TENTATIVE RULING MOTION TO STRIKE
Defendants’ entire motion to strike is premised on the same argument asserted in the demurrer as to Plaintiff lacking standing to pursue breaches to a duty owed to Part Four.

In Opposition, Plaintiff argues in relevant part:

The Motion should be denied for four (4) primary reasons. First, the Motion fails to cite any case, regulation, or statute regarding the form of the FAC or the procedures by which it was filed. Second, the grounds stated in the Motion for striking the entire FAC is an argument that Plaintiff lacks standing to pursue its claims for breach of duty which is the proper subject of a general demurrer, which Defendants have concurrently filed with the Motion, but not a proper subject of the motion to strike. Third, contrary to Defendants’ argument, Plaintiff does have standing to pursue its claims for breach of duty, i.e., professional negligence. Finally, the Motion ignores Plaintiff’s cause of action for aiding and abetting a tort (conversion) arising from Defendants providing substantial assistance and/or encouragement to Joshua Golsen (“Joshua”) and Part Four LLC (“Part IV”) converting Plaintiff’s membership interest in and capital account held by Part IV.

(Oppo. p. 4.)

In Reply, Defendants rehash several of the incomprehensible arguments already asserted in the Demurrer.

The Court will hear argument as to the motion to strike based on how it rules at the hearing on the Demurrer.