Judge: Carolyn M. Caietti, Case: 37-2023-00045821-CU-FR-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Fraud Demurrer / Motion to Strike 37-2023-00045821-CU-FR-CTL DIANE TIBURZI HAMON NOBIS AS TRUSTEE OF DIANE TIBURZI HAMON NOBIS REVOCABLE TRUST DATED NOVEMBER 1 1990 AS AMENDED AUGUST 22 2007 VS CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/16/2024

Defendants Robert Ritz and Barbara Ritz's Demurrer to the First Amended Complaint is OVERRULED.

Defendants Robert Ritz and Barbara Ritz's Motion to Strike Plaintiff's First Amended Complaint is GRANTED IN PART WITHOUT LEAVE TO AMEND AND DENIED IN PART.

Defendants' request for judicial notice of the FAC is granted and notice will be taken to the extent permitted. (Evid. Code, § 452(d).) Demurrer A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) The fourth cause of action states sufficient facts to constitute financial elder abuse under Welfare and Institutions Code section 15610.30(a). Plaintiff is an elder. (FAC, at ¶ 1.) Defendants 'took' her property for a 'wrongful use' by misrepresenting in writing the parking rights included with Plaintiff's condominium purchase, which they knew was false and restricted. They induced her to pay an inflated purchase price.

(FAC, at ¶¶ 9-14, 22-25.) As a result, Plaintiff was harmed in proceeding with the $1.5 million purchase.

(FAC, at ¶¶ 14-15.) The FAC is also not uncertain. Demurrers for uncertainty are disfavored and these allegations do not make it so Defendants cannot reasonably respond, adequately assert affirmative defenses or know what to ask in discovery. (Lickiss v. Financial Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) And the facts make clear Plaintiff is asserting a claim under section 15610.30, and not section 15657.6 [return of property to elder or dependent adult lacking capacity].

For these reasons, the demurrer is OVERRULED.

Calendar No.: Event ID:  TENTATIVE RULINGS

3076785  49 CASE NUMBER: CASE TITLE:  DIANE TIBURZI HAMON NOBIS AS TRUSTEE OF DIANE TIBURZI  37-2023-00045821-CU-FR-CTL Motion to Strike Defendants seek to strike certain allegations related to emotional distress damages, punitive damages and the prayer for punitive damages and attorney fees.

A motion to strike a complaint in whole or in part is governed by C.C.P. sections 435 through 437. C.C.P.

section 436, provides that '[t]he court may, upon a motion ... (a) [s]trike out any irrelevant, false or improper matter...(b) [s]trike out 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.' The grounds for a motion to strike must appear on the face of the challenged pleading or matter subject to judicial notice. (C.C.P., § 437(a).) In ruling on a motion to strike, courts must assume the truth of the complaint's allegations and liberally construe the allegations with a view to substantial justice. (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 91 & C.C.P., § 452.) With regard to emotional distress damages, the allegations are not irrelevant, false or improper. The motion to strike these allegations is DENIED.

With regard to punitive damages, a pleading that fails to adequately allege facts supporting a claim for punitive damages is subject to a motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) To recover punitive damages, a plaintiff must plead specific facts demonstrating malice, oppression or fraud. (Civ. Code, § 3294(a).) Malice, oppression and fraud are defined at Civil Code section 3294(c)(1)-(3).

Here, the FAC sufficiently alleges malice, fraud and oppression and that Defendants, despite having superior knowledge of the legal status of the parking spaces, intentionally misrepresented the two, standard side-by-side spaces were to be conveyed with Plaintiff's condominium purchase. (FAC, at ¶¶ 9-13.) Defendants knew these representations were false and concealed this fact from Plaintiff in order to close the transaction. (FAC, at ¶¶ 11, 20.) The motion to strike the malice, fraud, oppression allegations is DENIED.

With regard to attorney fees on the two fraud claims and negligence claim, the allegation requested attorney fees appears improper. A prevailing party's right to recover attorney fees ordinarily derives from a statute or underlying contract and are not otherwise recoverable in a fraud or negligence cause of action. However, in a narrow set of circumstances, a defrauded plaintiff may recover attorney fees as damages under the third-party tortfeasor or tort of another rule. These are fees incurred through instituting or defending an action against a third party as a direct result of the tort of another. (See, Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504, 512, fn. 2.) Here, Plaintiff seems to argue attorney fees as general damages that she incurred 'to try to remedy the violation.' (Opp., at p. 4:8-9, citing FAC, at ¶¶ 15, 22, 29.) But there is no third party or 'tort of another' claim or argument.

Plaintiff then argues fees are available 'on a contract' because Civil Code section 1717 permits recovery of attorney fees in any action on a contract where the contract specifically provides for an award of fees to the prevailing party. But critically, Plaintiff does not point to any provision in the purchase/sale contract allowing for attorney fees.

Thus, the inclusion of attorney fees in paragraphs 15 (p. 6:18), 22 (p. 7:18) and 29 (p. 8:21) is improper and will be struck. Plaintiff does not request leave to amend, nor articulate how these allegations can be cured. The motion to strike these allegations is GRANTED.

With regard to the prayer for punitive damages and attorney fees, the motion is denied as sufficient allegations are plead for the punitive damages and attorney fees are recoverable under the Elder Abuse cause of action. (Welf. & Inst. Code, § 15657.5(a), (d) ['Nothing in this section affects the award of punitive damages under Section 3294 of the Civil Code.'].) Thus, the motion to strike is GRANTED IN PART WITHOUT LEAVE TO AMEND AND DENIED IN Calendar No.: Event ID:  TENTATIVE RULINGS

3076785  49 CASE NUMBER: CASE TITLE:  DIANE TIBURZI HAMON NOBIS AS TRUSTEE OF DIANE TIBURZI  37-2023-00045821-CU-FR-CTL PART.

Concluding Orders The Court strikes 'attorneys fees' from the FAC's paragraphs 15 (p. 6:18), 22 (p. 7:18) and 29 (p. 8:21).

Defendants are ordered to: (i) file and serve an answer by May 31, 2024; and (ii) serve written notice of this ruling on all appearing parties by May 21, 2024, if the tentative ruling is confirmed without modification.

Plaintiff is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion papers.

Calendar No.: Event ID:  TENTATIVE RULINGS

3076785  49