Judge: Blaine K. Bowman, Case: 37-2022-00037129-CU-PO-NC, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 14, 2023

12/15/2023  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00037129-CU-PO-NC NELSON VS LEMONIS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 10/11/2023

The Demurrer to Complaint brought by defendants Marcus Lemonis and Camping World (collectively, Defendants) is SUSTAINED with leave to amend. The Motion to Strike brought by Defendants is GRANTED with leave to amend. In order to provide plaintiff Andrew Nelson (Plaintiff) with enough time to meaningfully consider and, as necessary, revise, his allegations to state claims under California law, as well as enough time to seek the aid of legal counsel, and in light of the upcoming holiday season, the deadline for filing and serving an amended pleading shall be Friday, January 19, 2024.

This complaint appears to apply to a contest in which a prize could be won. The plaintiff is Andrew Nelson, an alleged contestant in that contest. The caption of the complaint indicates that it is for: fraud, emotional distress, and 'Other Causes of Action.' To be clear, 'Other Causes of Action' lacks the requisite specificity to put a defending party on notice of what they are being sued for. Similar language is used within Section III of the complaint, which references 'Other assorted torts.' Again, 'Other assorted torts' lacks the requisite specificity to put a defending party on notice of what they are being sued for.

The complaint contains a long list of other causes of action, but they are in list format only. California Rules of Court, rule 2.112 contemplates greater specificity as to what the claims are, who they are made by, and who they are made against. Defendants demurred to at least some of the causes of action on grounds that they are uncertain, ambiguous, and unintelligible and thus subject to demurrer pursuant to Code of Civil Procedure § 430.10(f). Plaintiff has agreed to this even more broadly, with the first line of his opposition reading: 'Plaintiff agrees with opposing counsel that the Complaint is ambiguous and uncertain at this time.' (Opposition, p. 1:16-18.) As an aside, the Court notes that Defendants object to the opposition brief on grounds that it was filed late. Defendants are correct that it was filed late. However, given that declining to consider the opposition brief wholesale would produce a fairly draconian result (sustaining of a demurrer without leave to amend), and given that the lateness was by two days, the Court will exercise its discretion and consider the late opposition brief, but with an admonishment to Plaintiff: failure to comply with statutory deadlines in the future in this case may result in draconian results of having late-filed documents rejected, stricken, or simply not considered.

Given that this is the first demurrer, and that Plaintiff's opposition brief indicates that he would like an opportunity to amend his complaint, leave to amend is appropriate.

The Court does, however, note two things for the edification of the parties.

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3035161 CASE NUMBER: CASE TITLE:  NELSON VS LEMONIS [IMAGED]  37-2022-00037129-CU-PO-NC First, Plaintiff's opposition brief indicates an intention to file an amended pleading 'on or about 12-11-2023.' (Opposition, p. 1:25-27.) Given that that representation is forward-looking, such that at the time of this ruling the status of any attempt at filing an amended pleading is unknown, the Court simply notes that amending a pleading at this juncture without a stipulation and/or leave of court would be improper. (See Code of Civil Procedure § 472; see also California Rules of Court, rule 3.1324.) As such, at the time of the hearing on this matter, if any such filings are in the Court's electronic queue the Court will direct the Clerk to reject such filings, and, if filings have already been accepted by the Clerk, the Court will order them stricken on its own motion pursuant to Code of Civil Procedure § 436. Simply put, such a filing is not proper.

Second, the Court notes that Plaintiff 'asks that the Court base their 12-14-2023 tentative on the First Amended Complaint.' (Opposition, p. 2:1-2.) The Court declines to do this as it would not be proper. The procedural rules are structured so that a demurring party can see the operative pleading made against it and draft a demurrer addressing the deficiencies in that pleading. To consider a new pleading filed after the briefing on the demurrer is to have been completed wholly deprives Defendants of their opportunity to address the terms of that new pleading. A plaintiff cannot overcome a demurrer by 'changing the goalposts' with a last-minute filing.

Unfortunately, because of this procedural history and the relatively unclear terms of the operative complaint as it presently stands, little analysis can be provided as to the viability of the claims themselves. In considering whether to grant leave to amend, the Court takes into account the efforts that have been previously made to make meaningful amendments in an effort to allege viable causes of action. To the extent that little guidance can be provided in today's ruling because the briefing does not address the underlying merits of the causes of action (as Plaintiff has simple conceded that the claims as they stand are 'ambiguous and uncertain'), the Court would encourage any pleading party to give serious consideration to the claims being alleged and to 'put one's best foot forward' (which may include retaining the assistance of professional counsel) as this Court, and the law, discourage the judicial waste that results from multiple rounds of amending where little meaningful change is being made. (See Code of Civil Procedure § 430.41(e)(1).) Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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