Judge: Blaine K. Bowman, Case: 37-2022-00050178-CU-MC-NC, Date: 2023-12-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 28, 2023

12/29/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Misc Complaints - Other Demurrer / Motion to Strike 37-2022-00050178-CU-MC-NC LIFE CARE RESIDENCIES VS. TORREY PINES DEVELOPMENT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/03/2023

The Demurrer to Second Amended Complaint brought by defendants Torrey Pines Development Group LLC (the Investigator), Matthew Parks (Mr. Parks), and Scott Kirby (Mr. Kirby) is OVERRULED in its entirety. The Investigator, Mr. Parks, and Mr. Kirby (collectively, Defendants) time to answer or otherwise plead shall be as set forth in California Rules of Court, rule 3.1320.

The Request for Judicial Notice brought by Defendants is GRANTED pursuant to Evidence Code § 451, et seq. On its own motion, the Court takes judicial notice of the entire publicly-available record and files in the case of Life Care Residences, Inc. v. Affordable Senior Housing Foundation (S.D. Sup. Ct. No.

18-58858), a case that is referenced in the operative complaint, the briefing, and the prior demurrer in this case.

This Court previously ruled on a demurrer as to the substance of the allegations being made. That ruling overruled the demurrer as to those issues. However, this Court sustained a demurrer as to the issue of alter ego allegations against Mr. Parks and Mr. Kirby and granted plaintiff Life Care Residences Inc.

(Plaintiff) leave to amend. Plaintiff has done so, and the Investigator, Mr. Parks, and Mr. Kirby have now demurred to that amended complaint.

As to the substantive arguments made by the Investigator, Mr. Parks, and Mr, Kirby (collectively, Defendants), this Court adopts its prior reasoning as set forth in the ruling on the prior demurrer. (ROA 70.) The Court notes that both parties have cited legal authorities regarding the principle of whether or not a demurring party may re-raise arguments where a court has already overruled those arguments in a prior demurrer ruling. The Practice Guide admits to some lack of clarity on that issue. (See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶¶ 7:140-7:142 ('...it is not clear whether defendant may properly demur to the amended complaint on grounds overruled in the prior demurer (i.e., whether defendant gets 'two bites at the same apple')').) Withholding that it absolutely cannot review such issues, this Court exercises discretion and declines to re-engage in analysis of issues that were previously addressed in another demurrer – particularly where those issues were ruled-on by a different bench officer. The standard on demurrer is a liberal one, with facts needing to be indulged in favor of the complaining party, and it appears that a prior bench officer already indulged these allegations and found them sufficient to overcome demurrer. Though an amended pleading has been filed, it does not delete any of the prior allegations that were used to overcome that demurrer, and, as such, there is nothing substantively different that would warrant an effective reconsideration of the issue.

Where the parties were given leave to amend was on the issue of alleging an alter ego theory. Plaintiffs Calendar No.: Event ID:  TENTATIVE RULINGS

3032112 CASE NUMBER: CASE TITLE:  LIFE CARE RESIDENCIES VS. TORREY PINES DEVELOPMENT  37-2022-00050178-CU-MC-NC have now sufficiently pled facts to support an alter ego theory.

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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3032112