Judge: Elaine W. Mandel, Case: 23SMCV04861, Date: 2024-06-04 Tentative Ruling

Case Number: 23SMCV04861    Hearing Date: June 4, 2024    Dept: P

Tentative Ruling

Harris, et al. v. Wilshire Capital Group Case No. 23SMCV04861

Hearing Date: June 4, 2024

Defendant’s Demurrer to Plaintiff’s Complaint and Motion to Strike

The action arises from plaintiffs’ investment of approximately $226,000 in bullion coins. Plaintiffs allege for fraud, negligence, negligent misrepresentation, B&P 17200 and unjust enrichment. Wilshire demurs, arguing uncertainty and lack of jurisdiction, as all claims are time-barred by the one-year limitations period in the parties' agreement.

Wilshire’s request for the court to take judicial notice of the parties’ contracts dated October 3, 2022, Exhs. A and B, is DENIED, as Wilshire fails to cite authority that would allow the court to take judicial notice of the terms of private parties’ contracts. Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.

Wilshire Capital argues the action is barred under the parties' agreement, which sets forth a year limitations period to bring a claim. However, this is an improper basis for a demurrer, as it presents the court with factual issues not present in the complaint. A demurrer tests the sufficiency of the complaint whereby the court must take all allegations as true. E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.

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. Thus, the court must treat the facts pled as true and cannot make factual findings beyond the four corners of the complaint. Code Civ. Proc. § 430.10. A contract between the parties is not subject to judicial notice. Gould, supra, 31 Cal.App.4th at 1145. Insofar as Wilshire contends the parties’ agreement outlines the procedures when a dispute arises, such as arbitration, it may do so via an appropriate motion. OVERRULED.

Motion to Stike

Wilshire Capital moves to strike Pages 6-7, ¶20: “inter alia” and “as well as mental anguish damages” and Page 11, Prayer ¶¶ 3-4 & 7-8. Wilshire argues plaintiffs are contractually barred from requesting punitive damages and attorney’s fees. Plaintiffs assert the existence and terms of the parties’ written contracts are not subject to judicial notice and do not present adequate grounds for the motion to strike attorney’s, citing Gould. The court agrees.

Wilshire argues plaintiffs cannot recover emotional distress damages for claims of fraud. Generally, damages for mental suffering and emotional distress are not recoverable in contract, actions physical injury. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 516. The complaint alleges plaintiffs suffered mental anguish but does not allege physical injury. Furthermore, the complaint does not adequately explain why plaintiffs are entitled to treble damages. GRANTED in part as to Pages 6-7, ¶20 and Prayer ¶ 4.

Wilshire Capital Group is to answer within 10 days of notice of the court’s order.