Judge: Frank M. Tavelman, Case: 23BBCV00204, Date: 2023-12-01 Tentative Ruling

Case Number: 23BBCV00204    Hearing Date: December 1, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Sid Krofft (“Plaintiff’) brings this action against his brother Marty Krofft (“Marty”), Scott Brown (“Brown”), Scott Brown Consulting, Deanna Pope (“Pope”), Krofft Entertainment, Inc., Krofft Pictures Corporation, and Sid & Marty Krofft Productions Corporation (collectively” Defendants”). Plaintiff alleges Defendants reneged on a repurchase agreement for stock options in various business entities owned by Plaintiff and Marty. Plaintiff also alleges that Brown and Pope were involved as directors of these entities.

The Complaint contains causes of action for (1) Breach of Contract, (2) Breach of Contract – Continuous Accrual, (3) Breach of Covenant of Good Faith and Fair Dealing, (4) Promissory Estoppel, (5) Unjust Enrichment, (6) Accounting, (7) Negligence, (8) Financial Elder Abuse, and (9) Declaratory Relief.

Defendants now demurrer to each cause of action on grounds that the Complaint contains insufficient factual allegations. Plaintiff has filed no opposition.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

Meet & Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Madnick Decl. ¶¶ 2.)

Demurrer

Plaintiff has filed a Complaint which contains nine causes of action. The extent of Plaintiff’s factual allegations are as follows:

Plaintiff explored buyout options of his stake in various companies in the 2010’s (Compl. ¶ 46.) On May 11, 2017, Plaintiff and Defendants agreed to a repurchase agreement which included zeroing out Plaintiff’s loans to the companies involved. (Compl. ¶47.) This repurchase agreement obligated Defendants to pay Plaintiff $10,000 per month for the remainder of Plaintiff’s life and to buy Plaintiff a car. (Compl. ¶ 48.) Beginning February of 2019, Defendants ceased making the $10,000 monthly payment. (Compl. ¶ 51.) Defendants then allegedly defrauded Plaintiff into believing “any number of facts” about the business entities’ solvency, liquidity, and intent to uphold the repurchase agreement. (Id.)

The Court notes Plaintiff has submitted no opposition to this demurrer. Failure to oppose the demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20.) Additionally, the court may construe the absence of a memorandum as a waiver of all grounds not supported. (California Rule of Court Rule 3.1113(a).)

Defendants demur to the Breach of Contract cause of action for failure to allege sufficient facts. Defendants argue that no repurchase agreement has been attached to the Complaint, nor has the legal effect of the contract been adequately pled. Defendants argue the Complaint does not specify with whom the repurchase agreement was made or any of the terms outside of the payments to be made to Plaintiff. As part and parcel, Defendants argue Plaintiff’s second, third, and fourth causes of action fail for lack of factual allegations speaking to the contract.

The Court agrees with Defendants that the Complaint contains insufficient facts to constitute its contractual causes of action. Plaintiff attaches no contract and does not aver its terms in the required detail to survive demurrer.

As such the demurrer to the first, second, third, and fourth causes of action is SUSTAINED with leave to amend.

Defendants further argue Plaintiff’s cause of action for unjust enrichment is invalid, in that California does not recognize a separate cause of action for unjust enrichment. The Court notes there is a split of authority on whether unjust enrichment is a cause of action. “The phrase ‘Unjust Enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.” (Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal. App. 4th 1439, 1448.) “Unjust enrichment is ‘a general principle, underlying various legal doctrines and remedies,’ rather than a remedy itself.” (Melchior v. New Line Cinema (2003) 106 Cal. App. 4th 779, 793.)

Here, Plaintiff has alleged no facts speaking specifically to the availability of equitable relief but may be able to do so upon amendment.

As such the Demurrer to the fifth cause of action is SUSTAINED with leave to amend.

Defendants demur to the sixth cause of action for an Accounting on grounds that it is duplicative of the contractual actions. The Court agrees the Complaint contains no fact speaking specifically to an accounting, though Plaintiff may be able to add such facts on amendment.

Accordingly, the demurrer to the sixth cause of action is SUSTAINED with leave to amend.

Defendants argue Plaintiff’s seventh cause of action for Negligence is barred by the economic loss rule. The economic loss rule bars “a plaintiff’s tort recovery of economic damages unless such damages are accompanied by some form of physical harm (i.e., personal injury or property damage.)” (North American Chemical Co. v. Superior Court (1997) 59 Cal. App. 4th 764, 777.) Here, Plaintiff has alleged no harm outside of economic and thus his claim of negligence is barred. The Court finds it is possible Plaintiff may add facts which speak to a harm outside of economic damages. Accordingly, the demurrer to the seventh cause of action is SUSTAINED with leave to amend.

Defendants argue Plaintiff has pleaded insufficient facts as to the cause of action for Financial Elder Abuse. Financial elder abuse under Welfare and Institutions Code §15610.30 sets forth “three types of financial elder abuse of an elder: (1) taking real or personal property of an elder ‘for wrongful use or with intent to defraud; (2) assisting in the same; and (3) taking ‘real or personal property an elder…by undue influence, as defined under Welfare and Institutions Code §15610.70.” (Levin v. Winston-Levin (2019) 39 Cal. App. 5th 1025, 1034.) Defendants argue Plaintiff has pled no facts speaking to the “intent to defraud” requirement of the statute. Further, Defendants argues Plaintiff has not pleaded elder abuse with the requisite specificity required by Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 410.

The Court agrees Plaintiff fails to allege any facts speaking to an intent to defraud him, instead substituting conclusory statements mirroring the language of the statute. Further, Plaintiff’s allegations are not specific as to who committed this abuse, how the abuse was committed, or any other details with requisite specificity.

Accordingly, the demurrer to the eighth cause of action for Financial Elder Abuse is SUSTAINED with leave to amend.

Lastly, Defendants argue Plaintiff’s claim for Declaratory Relief must be denied because it is not “necessary or proper at the time under all the circumstances” as per C.C.P. § 1061. The Court notes that regardless of whether declaratory relief may ultimately be granted or denied, Defendants’ arguments do not speak to the standard of a demurrer.

Generally, a demurrer to a cause of action for declaratory relief will be overruled if an actual controversy is alleged, even if the plaintiff is not ultimately entitled to a judgment in his favor. (Osseous Technologies of Amer., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 364.) By virtue of Plaintiff’s failure adequately allege any of its previous causes of action, the Court finds no controversy has been alleged as of yet.

Accordingly, the demurrer to the ninth cause of action for Declaratory Relief is SUSTAINED with leave to amend.

Motion to Strike

Defendants seek to strike various portions of the Complaint which request punitive damages and attorneys’ fees. Given the Court has sustained the demurrer to each cause of action upon which these claims can be made with leave to amend, the motion to strike is MOOT.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Marty Krofft, Scott Brown, Scott Brown Consulting, Deanna Pope, Krofft Entertainment, Inc., Krofft Pictures Corporation, Sid & Marty Krofft Productions Corporation’s Demurrer and Motion to Strike came on regularly for hearing on December 1, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO EACH CAUSE OF ACTION IN PLAINTIFF’S COMPLAINT IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE PUNITIVE DAMAGES AND REQUESTS FOR ATTORNEYS’ FEES IS DENIED AS MOOT.

COURT SETS A CASE MANAGEMENT CONFERENCE / TRIAL SETTING CONFERENCE FOR FEBRUARY 15, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT KROFFT ENTERTAINMENT, INC.  TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 1, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles 

 LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR TRIAL PREFERENCE

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Sid Krofft (“Plaintiff’) brings this action against his brother Marty Krofft (“Marty”), Scott Brown (“Brown”), Scott Brown Consulting, Deanna Pope (“Pope”), Krofft Entertainment, Inc., Krofft Pictures Corporation, and Sid & Marty Krofft Productions Corporation (collectively” Defendants”). Plaintiff alleges Defendants reneged on a repurchase agreement for stock options in various business entities owned by Plaintiff and Marty. Plaintiff also alleges that Brown and Pope were involved as directors of these entities.

Plaintiff now moves for trial preference pursuant to C.C.P. § 36. Defendants do not oppose.

ANALYSIS: 

I.                    LEGAL STANDARD 

C.C.P. § 36(a) provides in part: “A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”.

Per C.C.P. § 36.5, “An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.” (See also Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 [“a motion under subdivision (a) may be supported by nothing more than an attorney’s declaration “based upon information and belief as to the medical diagnosis and prognosis of any party”].)

II.                 MERITS

Plaintiff submits proof that he is 94 years of age (Exh. A.) Plaintiff also submits the declaration of his counsel, Todd Wolfe. Wolfe’s declaration states that a review of his client’s medical records reveals he is afflicted with several serious medical conditions including melanoma and atrial fibrillation (Wolfe Decl. ¶¶ 4-6.) Wolfe further states that Plaintiff has substantial interest in the action and that his interest is prejudiced by his declining health. (Wolfe Decl. ¶ 8.)

C.C.P. § 36.5 states that an affidavit by a party’s attorney stated upon information and belief alone can suffice to satisfy that party’s motion for trial preference. This type of affidavit is not commonly accepted in any other motion and is designed to set the bar low when it comes to showings of poor health. Here, Plaintiff has submitted the declaration of his attorney stating he is of declining health and stating his various health conditions. The Court finds these showings more than satisfy the requirement of C.C.P. § 36(a).

Accordingly, Plaintiff’s unopposed motion for trial preference is GRANTED. Pursuant to C.C.P. § 36(f) the Court shall set the trial no more than 120 days from when the request; however, the Court has granted a demurrer in the matter and will set a trial date when the case is at issue.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Sid Krofft’s Motion for Trial Preference came on regularly for hearing on December 1, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR TRIAL PREFERENCE IS GRANTED.

JURY TRIAL WILL BE SET AT A LATER DATE AS THE CASE IS NOT AT ISSUE. 

TRIAL SETTING CONFERENCE IS SET FOR FEBRUARY 15, 2024 AT 9:00 A.M.

PLAINTIFF TO GIVE NOTICE

IT IS SO ORDERED. 

DATE:  December 1, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles