Judge: David A. Rosen, Case: 22GDCV00252, Date: 2023-04-14 Tentative Ruling
Case Number: 22GDCV00252 Hearing Date: April 14, 2023 Dept: E
Hearing Date: 04/14/2023 – 10:00am
Case No. 22GDCV00252
Trial Date: 11/13/2023
Case Name: GC-8 LLC, a California limited liability company; SAN CLEMENTE
BEACH COUNTRY CLUB, a California corporation; SHORECLIFFS GOLF MANAGEMENT INC.,
a California corporation; SEAN LEONG, indiv; ALLISON LEE, indiv; v. ROBERT D.
HEINRICH, CPA, indiv; ROBERT D. HEINRICH CPA INC, a California corporation;
MMAP SERVICES INC., a California corporation, DOES 1-30
TENTATIVE
RULING DEMURRER & MOTION TO STRIKE
Responding
Party: Plaintiffs, GC-8; San Clemente Beach Country Club; Shorecliffs Golf
Management; Sean Leong; Allison Lee
Oppo and Reply submitted.
Moving Papers: Demurrer (The motion to strike
was combined in the demurrer. There was no separate motion to strike filed);
Proposed Order; Caroline Wu Declaration
Opposition Papers: Opposition
Reply: Reply
RELIEF REQUESTED
Defendants
demur to and move to strike portions of the Second Amended Complaint (SAC)
filed by Plaintiffs.
The
demurrer is based upon the grounds as stated in CCP §430.10, 435, and 436 such
that:
1.
The First Cause of Action for Professional Negligence fails to state facts
sufficient to constitute a cause of action against two of the three demurring
Defendants and is therefore fatally vague and uncertain.
2.
The Second Cause of Action for Negligent Supervision fails to state facts
sufficient to constitute a cause of action against two of the three demurring
Defendants and is therefore fatally vague and uncertain.
3.
The Third Cause of Action for Accounting fails to state facts upon which relief
can be granted and is
subject to a Motion To Strike.
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. (Id., §430.41(a)(4).)
Moving
party alleges it met and conferred. (Wu Decl. ¶6-10.)
BACKGROUND
Plaintiffs filed the original Complaint on 05/27/2022.
On 09/26/2022, Plaintiffs filed a First Amended Complaint alleging four causes
of action: (1) Professional Negligence, (2) Negligent
Supervision, (3) Accounting, and (4) Violation of Business & Professions
Code §17200 et seq.
On 12/2/2022, this
Court heard Defendants’ demurrer and motion to strike as to the FAC. The Court
ruled that Defendants’ demurrer as to the first three causes of action were
sustained with leave to amend, and the demurrer as to the fourth cause of
action was overruled. Defendants’ motion to strike the third and fourth causes
of action was denied without prejudice.
On 01/05/2023,
Plaintiffs filed a Second Amended Complaint (SAC) alleging four causes of
action for: (1) Professional Negligence, (2) Negligent Supervision, (3)
Accounting, and (4) Violation of Business & Professions Code §17200 et seq.
DEMURRER LEGAL STANDARD
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.)
Professional Negligence
“To
state a cause of action for professional negligence, a party must show (1) the
duty of the professional to use such skill, prudence and diligence as other
members of the profession commonly possess and exercise; (2) breach of that
duty; (3) a causal connection between the negligent conduct and the resulting
injury; and (4) actual loss or damage resulting from
the professional negligence.” (Giacometti v. Aulla, LLC (2010) 187
Cal.App.4th 1133, 1137 citing Nichols v. Keller (1993) 14 Cal.App.4th
1672, 1682.)
Duty
Whether
a duty of care exists is a question of law to be determined on a case-by-case
basis. (Luceras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th
49, 62 citing Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456,472.)
Under general negligence principles, a person ordinarily is obligated to
exercise due care in his or her own actions so as not to create an unreasonable
risk of injury to others, and this legal duty generally is owed to the class of
persons who it is reasonably foreseeable may be injured as the result of the
actor’s conduct. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662
citing Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.) Whether
a given case falls within an exception to this general rule, or whether a duty
of care exists in a given circumstance, is a question of law to be determined
on a case-by-case basis. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654,
662 citing Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456,472.) Some
of the considerations that courts have employed in various contexts
to determine the existence and scope of duty are: the foreseeability of
harm to the plaintiff, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant's conduct and the
injury suffered, the moral blame attached to the defendant's conduct, the
policy of preventing future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved. (Thomas v. Stenberg (2012) 206
Cal.App.4th 654, 662-663 citing Parsons, supra, 15 Cal.4th 456,
472-473.) The general rule is that privity of contract is a requisite to a
professional negligence claim. (Giacometti v. Aulla, LLC (2010) 187
Cal.App.4th 1133, 1137 citing Goodman v. Kennedy (1976) 18 Cal.3d 335,
342.)
Robert,
the individual
As to Robert the individual, moving
party, at first glance, makes a convincing argument that Plaintiffs did not
sufficiently allege duty as to Robert. For instance, moving party refers to how
the Plaintiffs alleged they engaged Robert “through defendant Robert D.
Heinrich, CPA Inc.” A good example of this can be seen in Paragraph 15 of the
SAC. “Plaintiffs GC-8, LLC, San Clemente Beach Country Club, Shorecliffs Golf
Management, Inc., Sean Leong and Allison Lee each engaged defendant
Robert D. Heinrich, CPA ("Mr. Heinrich") to perform various
accounting and financial services such as providing tax advice, tax preparation
and filing, bookkeeping, payroll management, and general financial management through
defendant Robert D. Heinrich, C.P.A, Inc. {"RDH, INC."). (SAC
¶15 [emph added.].)
Further, moving party accurately notes
that Plaintiffs do this several times, i.e. allege that Plaintiffs engaged
Robert through Defendant CPA Inc. For example, this can also be seen in
Paragraph 21, “Well before Plaintiffs, Sean Leong and Allison Lee, became the
owners of the entity plaintiffs (i.e. GC-8, LLC; San Clemente Beach Country
Club; Shorecliffs Golf Management, Inc.) Sean Leong and Allison Lee, as well as
many of their family members, had a long-standing business relationship with
Mr. Heinrich who, among other things, had been hired to provide them with tax
and financial services/advice as a certified public accountant through
Mr. Heinrich's company, RDH INC.” (SAC ¶21 [emph added.].)
While moving papers are not clear in
any fashion as to why this is grounds for sustaining a demurrer, the Reply helps
clarify moving party’s theory. The reply appears to accurately point out that
if Plaintiffs are going to hold the individual Robert personally liable for
actions of the corporate entity, Plaintiffs must allege alter ego liability.
As stated in Snora
Diamond Corp. V. Superior Court (2000) 83 Cal.App.4th 523, 538-539:
In California, two conditions must be met before the
alter ego doctrine will be invoked. First, there must be such a unity of
interest and ownership between the corporation and its equitable owner that the
separate personalities of the corporation and the shareholder do not in reality
exist. Second, there must be an inequitable result if the acts in question are
treated as those of the corporation alone. [Citations.] “Among the factors to
be considered in applying the doctrine are commingling of funds and other
assets of the two entities, the holding out by one entity that it is liable for
the debts of the other, identical equitable ownership in the two entities, use
of the same offices and employees, and use of one as a mere shell or conduit
for the affairs of the other [Citations.]” Other factors which have been
described in the case law include inadequate capitalization, disregard of
corporate formalities, lack of segregation of corporate records, and identical
directors and officers. [Citations.] No one characteristic governs, but the
courts must look at all the circumstances to determine whether the doctrine
should be applied. [Citations.] Alter ego is an extreme remedy, sparingly used.
[Citations.]
In Rutherford
Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36, the
Court of Appeal held the following was sufficient to allege alter ego
liability:
Rutherford alleged that Caswell dominated and
controlled PDR; that a unity of interest and ownership existed between Caswell
and PDR; that PDR was a mere shell and conduit for Caswell's affairs; that PDR
was inadequately capitalized; that PDR failed to abide by the formalities of
corporate existence; that Caswell used PDR assets as her own; and that
recognizing the separate existence of PDR would promote injustice. These
allegations mirror those held to pass muster in First Western Bank &
Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915–916, 73 Cal.Rptr. 657.
As in First Western, “[a]ssuming these facts can be proved, [Caswell] ...
may be held liable ... under the alter ego principle.” (Id. at p. 916,
73 Cal.Rptr. 657.)
Defendants argue that Rutherford failed to allege
specific facts to support an alter ego theory, but Rutherford was required to
allege only “ultimate rather than evidentiary facts.” (Doe v. City of Los
Angeles (2007) 42 Cal.4th 531, 550, 67 Cal.Rptr.3d 330, 169 P.3d 559.)
Moreover, the “less particularity [of pleading] is required where the defendant
may be assumed to possess knowledge of the facts at least equal, if not
superior, to that possessed by the plaintiff,” which certainly is the case
here. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474, 20
Cal.Rptr. 609, 370 P.2d 313.) Therefore, we affirm the trial court's ruling
that Rutherford sufficiently pled an alter ego theory of liability.
Here, there is no question that
Plaintiffs do not allege alter ego liability.
Further, the Opposition in no way
addresses this problem, and the Opposition’s legal theory is not supported by
law. [It is possible Opposition did not address this issue because alter-ego
liability was not explicitly brough up until the Reply. In moving papers, the
motion simply argued that sufficient facts were not alleged as to Robert but
provided no legal reason as to why.] Opposition simply argued a professional
like an accountant who personally performs professional services for a client
can be subject to personal liability for professional negligence. Opposition cited a case, Sahadi v.
Schaeffer (2007) 155 Cal. App. 4th 704, that did not directly address
the issue here. Plaintiffs seem to have
cited Sahadi simply because in that case claims were made against an
accounting firm and individuals that worked there. However, Opposition’s case
is not entirely on point.
However, this SAC does appear to
sufficiently make allegations against Robert as an individual, as opposed to attempting
to hold Robert personally liable for the actions of CPA Inc.
For example, in Paragraph 22, “As
part of that transfer of ownership, Sean Leong and Allison Lee engaged Mr.
Heinrich and his firm RDH INC to provide them and their new golf
course venture with general financial management, accounting services,
bookkeeping services, tax advice, strategic organizational structure advice (as
the organizational structure relates to
financial and tax ramifications/implications), in addition to continuing
to advise them on their individual financial and tax advice and drafting and
filing their tax returns. So after May 2019, Mr. Heinrich and his firm RDH INC were engaged to
provide all of these services to Sean Leong, Allison Lee, as well as to all of their golf course
related entities, which eventually included entity Plaintiffs GC-8, LLC, San
Clemente Beach Country Club, and Shorecliffs Golf Management, Inc.” (SAC ¶22.)
Paragraph 22 can be read to allege that
Plaintiffs separately engaged Mr. Heinrich individually and separately engaged
RDH Inc.
A complaint may state multiple legal
theories upon which recovery might be predicated for one claim for relief. (See
Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th
334, 351.) A party may plead alternative legal theories and make
inconsistent allegations in the pleading. (See Mendoza v. Rast Produce Co.,
Inc. (2006) 140 Cal.App.4th 1395, 1402; Rader Co. v. Stone (1986)
178 Cal.App.3d 10, 29.)
Therefore, Plaintiffs appear to sufficiently
allege duty as to Robert the individual.
MMAP
As to
whether the element of duty was sufficiently alleged as to MMAP, Defendants
argue that the sole factual allegation against MMAP is that Robert requested
that payment be made to MMAP on one occasion.
This
allegation as to the payment to MMAP can be found in Paragraph 26. “From the
time Mr. Heinrich and his firm RDH INC were engaged/contracted to provide
comprehensive financial, accounting and tax services related to the golf
course, until termination of that engagement/contract on or about January 2022,
Mr. Heinrich himself, or through instructions he provided to his son Joel
Heinrich, directed how, from which entity, when, and in what amounts checks
would be made payable to Mr. Heinrich directly, to his son Joel Heinrich, or to
one of Mr. Heinrich's entities RDH INC and MMAP Services, Inc. Upon information
and belief MMAP Services, Inc. was created sometime after Mr. Heinrich had been
engaged/contracted to perform the services for Plaintiff under the
engagement/contract as described herein and it is owned and/or controlled by
Mr. Heinrich. One such payment directed by Mr. Heinrich to be made to MMAP
Services, Inc. was for several hundred thousand dollars for "tax
mitigation." (SAC ¶26.)
While these
allegations against MMAP alone seem insufficient to allege a duty against MMAP,
there appear to be other allegations against MMAP to sufficiently allege duty. For
example, in Paragraph 6, Plaintiffs allege that MMAP provided professional accounting
and financial services for Plaintiffs. “Plaintiffs are informed and believe and
on that basis allege that defendant ROBERT D. HEINRICH is a licensed certified
public accountant, as well as the owner of defendants ROBERT D. HEINRICH,
C.P.A, INC. and MMAP SERVICES, INC. through which this defendant provided
professional accounting and financial services to his clients, including
Plaintiffs, and at all times relevant to this complaint he held himself out as
a competent certified public accountant and financial professional.” (SAC ¶6.) Further,
the SAC alleges , “Plaintiffs are informed and believe and on that basis allege
that defendant MMAP SERVICES, INC. is a California corporation, and at all
times relevant to this complaint held itself out as being operated by defendant
Robert D. Heinrich, CPA, and providing competent accounting and/or financial
services to its clients, including Plaintiffs, either done personally by
defendant Robert D. Heinrich, or by others that were supervised by him,
including but not limited to his son Joel Heinrich, and that this defendant's
principal place of business was and is located in Pasadena, California.” (SAC
¶8.)
Those
allegations are sufficient to allege duty as to MMAP.
As to the
first and second causes of action, moving party makes no arguments as to breach,
causation, and damages. Therefore, this Court will not address those issues
because it appears that those elements are sufficiently alleged.
TENTATIVE
RULING
Defendants’ demurrer to the first cause
of action for professional negligence is OVERRULED.
SECOND
CAUSE OF ACTION – NEGLIGENT SUPERVISION
To state a cause of action for
negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty
of care, (2) the defendant breached that duty, and (3) the breach proximately
caused the plaintiff’s damages or injures. (Luceras v. BAC Home Loans
Servicing, LP (2013) 221 Cal.App.4th 49, 62 citing Thomas v. Stenberg (2012)
206 Cal.App.4th 654, 662.)
An employer
may be liable to a third person for the employer’s negligence in hiring or
retaining an employee who is incompetent or unfit. (Delfino v. Agilent
Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 citing Roman Catholic
Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-1565.) Negligence
liability will be imposed upon the employer if it knew or should have known
that hiring the employee created a particular risk or hazard and that
particular harm materializes. (Delfino v. Agilent Technologies, Inc. (2006)
145 Cal.App.4th 790, 815 citing Doe v. Capital Cities (1996) 50
Cal.App.4th 1038, 1054.) “As such, ‘California follows the rule set forth in
the Restatement Second of Agency section 213, which provides in pertinent part:
‘A person conducting an activity through servants or other agents is subject to
liability for harm resulting from his conduct if he is negligent or reckless:
... [¶] (b) in the employment of improper persons or instrumentalities in work
involving risk of harm to others[.] (Ibid.)’ (Evan F. v. Hughson United
Methodist Church (1992) 8 Cal.App.4th 828, 836, 10 Cal.Rptr.2d 748.) Liability for negligent supervision and/or
retention of an employee is one of direct liability for negligence, not
vicarious liability. (2 Dobbs, The Law of Torts, supra, § 333, p. 906.)” (Delfino
v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)
As a
preliminary matter, this cause of action is difficult to assess, because moving
party makes no arguments about negligent supervision in its moving papers. The
Opposition argues that since the moving papers make no arguments about
negligent supervision, it cannot be dismissed.
In Reply,
the Reply notes that the duty arguments it made in the professional negligence
claim also pertain to negligent supervision because both causes of action have
the element of duty. Therefore, the only arguments about negligent supervision
are the arguments that were made about professional negligence.
As this
Court previously discussed above, Duty was sufficiently alleged.
Since no
other arguments were made as to negligent supervision, the Court will end its
analysis here as to this cause of action.
TENTATIVE
RULING
Defendants’ demurrer as to the second
cause of action for negligent supervision is OVERRULED.
Third
Cause of Action – Accounting
“A
cause of action for accounting requires a showing of a relationship between the
plaintiff and the defendant, such a fiduciary relationship, that requires an
accounting or a showing that the accounts are so complicated they cannot be
determined through an ordinary action at law.” (Fleet v. Bank of America
N.A. (2014) 229 Cal.App.4th 1403, 1413 citing Brea v. McGlashan (1934)
3 Cal.App.2d 454, 460.) “An action for accounting is not available where the
plaintiff alleges the right to recover a sum certain or a sum that can be made
certain by calculation.” (Fleet v. Bank of America N.A. (2014) 229
Cal.App.4th 1403, 1413 citing Teselle v. McLoughlin (2009) 173 Cal.App.4th
156, 179.)
Plaintiffs
accounting cause of action alleges against all Defendants in the SAC:
Plaintiffs hereby reincorporate by reference all the
allegations in paragraphs 1 through 69 as if they were set forth in full in
this paragraph. Defendants were engaged by Plaintiffs to perform professional
accounting and bookkeeping services as described in more detail through
throughout this Complaint. Based upon the belief (that turned out to be
incorrect) that Defendants were actually performing the work/services for which
they were engaged and paid by Plaintiffs, Defendants received approximately $500,000.
While Plaintiffs can determine how much money was paid on behalf of each
Plaintiff to each person based on instructions from Mr. Heinrich, due to the deplorable
state of the financial records created by Joel Heinrich under Mr. Heinrich’s
negligent (apparently non-existent training and supervision), Plaintiffs cannot
match each payment made to the purported “services” provided. Therefore, Plaintiffs
seek an accounting from Defendants that matches each payment with a detailed
breakdown and description tying each payment to the specific work/services for
which each payment to the Defendants was made.
(SAC ¶70-73.)
Defendants
argue as follows in their demurrer:
Plaintiffs cannot establish the second element of this cause
of action, and they do not even dispute that. Plaintiffs have all the
information necessary to calculate both the amount the paid, and the amount
still owing for accounting services - both from their own banking and
bookkeeping records, as well as from the timely invoices they were provided.
The SAC admits this, but goes on to request descriptions of the services for
which payments were made. This is not a proper cause of action for an
accounting. Plaintiffs are readily able to calculate the amount they paid, and
for which they believe they are entitled to be refunded, further detailed
descriptions are unnecessary. Thus, this cause of action should be stricken
pursuant to the pending Motion to Strike.
(Demurrer p. 6.)
In
Opposition, Plaintiffs argue, “While this is admittedly not a classic case for
an accounting, as an equitable doctrine, given the facts of this case,
Plaintiffs believe that an accounting action is properly brought here.” (Oppo.
p. 9.) Plaintiffs’ beliefs, however, do
not carry the day.
TENTATIVE
RULING
Demurrer
to the third cause of action for an accounting is sustained without
leave to amend.
Other
In
moving papers, Defendants argue that the SAC is fatally uncertain because it
fails to state when the alleged wrongdoing occurred. Under this theory
Defendants simply cite two cases that stand for the proposition that all civil
actions are subject to statutes of limitations. Defendants then argue, “Other
than a couple general references to the year relating to when Plaintiffs may
have discovered any alleged wrongdoing, Plaintiffs' SAC completely fails to
identify when the alleged wrongdoing occurred, rendering Defendants unable to
fully or fairly respond to the claims against them.”
As
a preliminary matter, it is not clear if moving party is arguing that breach is
not adequately asserted, or if moving party is alleging that there is a statute
of limitations problem.
If
moving party is arguing about the statute of limitations, their argument is
unavailing.
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.).
Here,
moving party makes no argument or reference as to what the statute of
limitations are on any of these causes of action or why it may or may not have
run.
In
reply, it appears as if Defendants may be stating that their argument is that the
SAC is uncertain on the basis that the breach element of professional
negligence and negligent supervision was not sufficiently alleged because
Plaintiffs didn’t allege when the breach occurred.
As
a preliminary matter, Defendants cite no case law that state Plaintiffs must
allege precisely when the breach occurred. In Reply, the cases that Defendants
cited are factually distinguishable from the instant set of facts. None of
those cases cited by Defendants involve negligence or negligence supervision.
In those cases, the date was relevant because ownership or contracts were
involved.
Further,
the SAC alleges in several paragraphs, for example, ¶55-59 that breaches
occurred by late 2021.
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.)
The
general demurrer is OVERRULED.
Motion
to Strike Standard
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”].)
“A
notice of motion to strike a portion of a pleading must quote in full the
portions sought to be stricken except where the motion is to strike an entire
paragraph, cause of action, count, or defense. Specifications in a notice must
be numbered consecutively.” (Cal. Rules of Court, Rule 3.1322(a).)
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).)
However, moving party made no motion
to strike separately from the demurrer. Moving party wants the accounting cause
of action stricken.
TENTATIVE
RULING
The
Motion to Strike is DENIED as moot.