Judge: Frank M. Tavelman, Case: EC068968, Date: 2023-08-18 Tentative Ruling

Case Number: EC068968    Hearing Date: August 18, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS:

The lawsuit arises from an alleged agreement between Jorge del la Garza (“Plaintiff”) and G.D. Baca Inc. dba Counterpoint Public Adjusting (“Counterpoint”), Gary Baca (“Baca”), Victor Cuahutemoc Pena (“Pena”), and Vic’s Restoration & Construction (“Vic’s) (collectively “Defendants”). Plaintiff alleges a series of contracts between himself and Defendants. Plaintiff alleges an initial contract whereby Counterpoint would assess insurance claims on Plaintiff’s property. Plaintiff asserts that, pursuant to that agreement, Counterpoint was to hold money received from Plaintiff’s insurance company and disburse as necessary to Vic’s.

Plaintiff alleges a second contract for the restoration of Plaintiff’s property exists between Vic’s and himself. Plaintiff believes that Counterpoint dispersed to Vic’s more than $182,000 of the $250,822.80 granted by Plaintiff’s insurance. Plaintiff assets that Vic’s walked off the job leaving it incomplete and that the work completed was below standard.

The Court previously granted a motion for judgment on the pleadings (“MJOP”) with leave to amend on Plaintiff’s First Amended Complaint (FAC). Plaintiff’s Second Amended Complaint (“SAC”) contains causes of action for (1) Negligence (as against all defendants), (2) Breach of Contract (as against Vic’s), (3) Breach of Contract (as against Counterpoint and Baca), (4) Breach of Fiduciary Duty (as against Counterpoint and Baca), (5) Fraud (as against all Defendants), and (6) Recovery Against Contractor’s License Board (as against Vic’s). 

Counterpoint and Baca (“Demurring Parties”) now demur to the first, and third through sixth causes of action. Demurring Parties also move to strike those portions of Plaintiff’s SAC which request punitive damages.

REQUEST FOR JUDICIAL NOTICE:

Demurring Parties requests the Court take judicial notice of (1) the February 3, 2023 tentative ruling on the MJOP, (2) Public Adjuster License Print-Out from California Department of Insurance Website for Edvard Yagubyan, (3) the original Complaint, (4) the FAC, (5) the SAC.

The Court grants judicial notice as to these requests.

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. (Ibid.)

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 p. 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.)

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The court may also “[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.” (C.C.P. § 436 (b).)

II.            MEET AND 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. (Sofris Decl.)

III.            MERITS

Recovery Against Contractor’s License Bond (6^th COA)

Plaintiff has stipulated to dismiss this cause of action in light of the cases consolidation with Case No. 19STLC0022.

Alter Ego (1^st, 3^rd, and 5^th COAs as to Baca) – Sustained with Leave to Amend

“Under the alter ego doctrine, then, when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the courts will ignore the corporate entity and deem the corporation's acts to be those of the persons or organizations actually controlling the corporation, in most instances the equitable owners.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523.) “The allegation that a corporation is the alter ego of the individual stockholders is insufficient to justify the court in disregarding the corporate entity in the absence of allegations of facts from which it appears that justice cannot otherwise be accomplished.” (Norins Realty Co. v. Consolidated Abstract & Title Guaranty Co. (1947) 80 Cal.App.2d 879.) “Mere ownership of all the stock and control and management of a corporation by one or two individuals is not of itself sufficient to cause the courts to disregard the corporate entity.” (Id.)

The Court previously sustained the demurrer to the first, third, fourth, and fifth cause of action as to Baca because Plaintiff failed to adequately allege his theory of alter ego liability. Demurring Parties argue the SAC does nothing to cure the defects of the FAC in this regard. Indeed, Plaintiff does not advance any alter ego arguments in his opposition. Instead, Plaintiff argues in opposition that Baca is personally liable as an agent of Counterpoint. However, the SAC contains no allegations that Baca is an agent of Counterpoint. The SAC’s allegations as to Baca read:

BACA is the promoter and sole shareholder of defendant, G.D. BACA, INC., a corporation BACA formed under the laws of the State of California, licensed to do and doing business in the County of Los Angeles as COUNTERPOINT PUBLIC ADJUSTING. Plaintiff is informed and believes and on that basis alleges, at all relevant times BACA dominated, controlled, and influenced COUNTERPOINT such that COUNTERPOINT was a mere shell BACA used to conduct his personal affairs, and/or as obligor for the assumption of obligations and liabilities COUNTERPOINT was incapable to perform, which are the obligations and liabilities of BACA. (SAC ¶ 4.)

This language is identical to language alleging alter ego liability. The Court previously found Plaintiff had not properly alleged facts showing Baca operated Counterpoint for the purpose of fraud. The Court also found Plaintiff had not alleged facts indicating manifest injustice would result from disregarding the corporate entity.

As will be discussed, the SAC does adequately allege facts to support its claim for breach of fiduciary duty against Baca personally but not through an alter ego theory. The SAC remains unclear as to what Baca’s individual liability is for the first, third, and fifth causes of action. Accordingly, the demurrer to the first, third, and fifth causes of action against Baca is SUSTAINED with 20 days’ leave to amend. 

The Court notes that it is disinclined to grant further leave to amend should any third amended complaint fail to properly allege the alter-ego unless they are able to affirmatively show they can resolve any subsequent defects and why they did not do so in any third amended complaint.

Negligence – (1^st COA) - Overruled

The Court previously sustained a demurrer to Plaintiff’s cause of action for negligence because it found the Complaint failed to allege a duty which Defendants owed to Plaintiff outside their contractual agreement.

Although Plaintiff does not specifically state as much, it appears he is attempting to allege negligence per se.  Negligence per se is a doctrine associated with Evidence Code § 669 which provides that a person’s failure to exercise due care can be presumed if that person violated a statute, ordinance or regulation of a public entity. The Court notes that Evidence Code § 669 specifically indicates that violation of a statue speaks to the “failure to exercise due care” element of a negligence claim. Negligence per se is an evidentiary doctrine and not an independent cause of action, meaning a viable underlying cause of negligence must exist for the code section to apply. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1211.) Where plaintiff seeks to use negligence per se to establish a duty that would otherwise not exist, as Plaintiff does here, the statute violated must explicitly create that duty. (See Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 429.) In evaluating whether a statute creates an independent duty owed to a plaintiff, courts commonly assess the legislative purpose of the statute and whether plaintiff is a person that statute was designed to protect. (Id.)

Here, to properly allege a duty was owed the statutory codes on which Plaintiff relies must create that duty. To this effect, Plaintiff argues Counterpoint breached several duties owed to Plaintiff established by various insurance code provisions. The Court will analyze them in turn.

The Court notes that the parties both discuss Insurance Code sections in their moving papers which are not referenced in the SAC. As a demurrer concerns only the sufficiency of the pleading, consideration of code sections not set forth in the SAC are irrelevant. Additionally, Demurring Parties argue at length that Plaintiff’s claims are improper because none of these insurance codes create a private right of action. Demurring Parties are correct that exclusive authority to prosecute violations belongs to the insurance commissioner as per Insurance Code § 15034. However, Plaintiff is not stating a claim for violation of the statute and is instead stating a claim of negligence evidenced by Demurring Parties’ alleged statutory violations. As such, the existence of a private right of action is irrelevant.

Insurance Code § 15019(b)(9)

“The apprentice public insurance adjuster license is subject to the following terms and conditions…. (9) The licensee is restricted to participation in factual investigation, tentative closing, and solicitation of losses subject to the review and final determination of a licensed public insurance adjuster.”

Plaintiff alleges Counterpoint violated the above statute by allowing its apprentice adjuster to solicit and close the contract between Counterpoint and Plaintiff. (SAC ¶¶ 13,14.)

Before determining whether this section creates an independent duty, the Court must address Demurring Parties argument that no violation occurred. Demurring Parties argue the statute does not explicitly prohibit apprentices from engaging in these activities, rather it requires such work done by apprentices be checked by an actual adjuster. (Dem. p. 14.) Demurring Parties further argue the SAC fails to allege any facts supporting that such a review did not actually occur in this instance.

The Court finds Demurring Parties interpretation of the statue to be incorrect. Insurance Code § 15019(b)(9), by its plain language, specifically defines which activities apprentices may partake in, and subsequently requires an actual adjuster review those limited activities. The statute does not grant carte blanche to apprentice adjusters to participate in the closing of contracts so long as those closings are reviewed. It makes no sense that a contract closed by an apprentice would be valid upon review, as the contract would at that point already have been signed by the parties intended to be bound. Here, the SAC alleges an apprentice for Counterpoint handled the entirety of the contract for Plaintiff’s claim. The Court finds these facts sufficient to allege violation of the statute.

It also appears to the court that Insurance Code § 15019(b)(9) explicitly contemplates a duty owed to a person who hires an independent insurance adjuster. The clear purpose of the prohibition of an apprentice from handling an entire contract is to prevent mistakes in contract which would not occur if handled by an actual adjuster. Counterpoint’s apprentice handling the entire contract poses risk of mistake and misrepresentation which are presumably not present when the contract is handled by a fully licensed adjuster. Further, Counterpoint allowed the apprentice to handle the entire contract, meaning they are open to vicarious liability. Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment. (John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 575.)

The Court finds Plaintiff has adequately pled a cause of action for negligence against Counterpoint under the doctrine of negligence per se. The violation of Insurance Code § 15019(b)(9) by Counterpoint’s apprentice was clearly within the scope of his employment with Counterpoint. Further, it is clear Insurance Code § 15019(b)(9) creates a duty owed by insurance adjusters to refrain from allowing apprentices to fully negotiate, form, and execute contracts.

Insurance Code § 15027(d)

A licensee shall not solicit or attempt to solicit a client for employment during a loss-producing occurrence. A loss-producing occurrence continues to exist when any of the following conditions exist at the property that is subject to solicitation:

(1)   Any of the circumstances that caused the loss are present at the property where the solicitation would otherwise take place.

(2)   Emergency responders are present at the property where the solicitation would otherwise take place.

(3)   An evacuation order is still in effect at the property where the solicitation would otherwise take place.

Plaintiff alleges Counterpoint violated this statute when its adjuster solicited Plaintiff on the day of the fire. (SAC ¶¶ 13,14.)

Demurring Parties argue no solicitation took place at a time relevant under the statute. Demurring parties argue Plaintiff only alleges solicitation occurred on the day of the fire, not while firefighters were responding to it.

Plaintiff’s factual allegations are insufficient to state a violation of this statute. Plaintiff only alleges that the contract with Counterpoint was formed on the day of the fire. (SAC ¶ 14.) Plaintiff does not allege whether the fire was still occurring, whether emergency responders were still present, or if an evacuation order was in place. Plaintiff simply alleges that Pena arrived on the seen during the fire and spoke to Plaintiff, but the details of Counterpoint contacting Plaintiff, or vice-versa, are absent. As such, the Court finds Plaintiff has not sufficiently alleged a violation has occurred. Given that no violation of the statute has been pled, the Court need not determine whether the statute established a duty.

Insurance Code sec. 15027(v)

Plaintiff also claims Counterpoint breached this code section, which requires separate disclosures be provided by the insurance adjuster before signing of the contract occurs. However, the SAC alleges no facts in support of this allegation. The SAC does not aver that these disclosures were not given, it merely recites that the statute was violated. Plaintiff provides no argument to the contrary in their opposition. As such, the Court does not find this violation adequately pled.  

Insurance Code sec. 15027(x)

Insurance Code sec. 15027(x) provides “If the licensee misrepresents or conceals a material fact from the insured prior to execution of the contract, the insured is entitled to rescind the contract without time limit.” Demurring Parties argue that this section is inapplicable to prove negligence because Plaintiff is not seeking to rescind the contract with Counterpoint. Plaintiff provides no argument with respect to this code section in their opposition. The Court agrees that the statute specifically contemplates recission and as such is inapplicable in these circumstances.

“Ordinarily, a general demurrer does not lie as to a portion of a cause of action and if any part of a cause of action is properly pleaded, the demurrer will be overruled.” ( Elder v. Pacific Bell Telephone Company (2012) 205 Cal.App.4th 841, fn. 14.) “ [A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [Citations omitted])

Although some theories for the Negligence cause of action may not apply, but others do, the Demurrer is overruled.

Breach of Contract (3^rd COA) - Overruled

Demurring Parties first argue Plaintiff cannot state a claim for breach of contract because they are barred by the parol evidence rule. Plaintiff alleges the agreement to hold claim funds in a trust account was oral, in contrast to the written agreement governing the proceeds Counterpoint would retain for adjusting the claim. (SAC ¶ 15.) Demurring Parties argue that Plaintiff fails to state a cause of action because the parol evidence rule bars the admittance of evidence concerning this oral contract.

The “parol evidence rule” generally prohibits the introduction of any extrinsic evidence, whether oral or written, to vary, alter or add to the terms of an integrated written instrument, but does not prohibit the introduction of extrinsic evidence to explain the meaning of a written contract if the meaning urged is one to which the written contract terms are reasonably susceptible. (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343.) Here, Plaintiff claims the terms of the agreement attached as Exhibit 1 are incomplete, and that there was an additional agreement that insurance claim funds would be held and dispersed by Counterpoint.

The Court notes that the parol evidence rule does not speak to the standard of a demurrer. “A demurrer tests the pleading alone and not the evidence or other extrinsic matters. The demurrer lies only where the defects appear on the face of the pleading. Objections which do not so appear are raised by answer. Failure to plead what extrinsic evidence will be offered does not constitute a waiver. Where an ambiguous contract is attached and incorporated into the complaint, the party pleading is only required to allege in the complaint the meaning which the party ascribes to that contract.” (Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1, 17.) Here, Plaintiff’s claim is not defective on its face. Plaintiff alleges a contract existed between himself and Counterpoint and that the written instrument does not fully reflect the terms of that agreement. Assuming all factual allegations are true, as the Court must do, Plaintiff’s allegations are sufficient to sustain a cause of action for breach of contract. Whether evidence of this oral addendum will be found to later be barred as parol evidence remains to be seen.

Demurring Parties next argue this cause of action is barred by the applicable statute of limitations. C.C.P. § 337(a) provides the statute of limitations for breach of a written contract is four years. C.C.P. § 339 provides the statute of limitations for breach of a written contract is two years. Demurring Parties and Plaintiff both refer only to the two-year standard, however the Court finds the four-year standard is applicable. Demurring Parties argument in regard to parol evidence and Plaintiff’s allegations make clear the agreement to hold and disburse funds was an addition to the terms of the written contract, not a contract all its own. The agreement to hold and disburse funds would therefore be a “contract founded upon an instrument of writing” as per C.C.P. § 339, despite the contract not incorporating all the substantive terms. The written contract was executed on September 1, 2014 and that Complaint was filed on July 2, 2018. The Court finds Plaintiff’s cause of action for breach is not barred by the applicable statute of limitations.

Accordingly, the demurrer to the third cause of action as against Counterpoint is OVERRULED.

Breach of Fiduciary Duty (4^th COA) - Overruled

Demurring Parties argue the SAC contains no allegations of a fiduciary relationship between Baca and Plaintiff. Demurring Parties cite to City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, which the Court relied upon in ruling on the MJOP. The court in City of Hope found no fiduciary duty arose where a plaintiff could not show a substantial vulnerability giving rise to equitable concerns. (Id. at 389.)

In his opposition, Plaintiff cites to Insurance Code § 15028.6 as establishing a fiduciary duty owed by Baca.  Insurance Code § 15028.6 provides “All funds received as claim proceeds by any person acting as a public insurance adjuster are received and held by that person in his or her fiduciary capacity.” This code section makes clear that insurance adjusters who hold funds for clients are acting in a fiduciary capacity and owe a fiduciary duty to their client.

The City of Hope decision did not concern an instance where a statute explicitly created a fiduciary duty. Here, the law explicitly states a public insurance adjuster owes a fiduciary duty.  Plaintiff alleges that Baca breached this duty by dispersing funds to Vic’s improperly. The Court finds Plaintiff has adequately pled its cause of action for breach of fiduciary duty.

Accordingly, the demurrer to forth cause of action as to Baca is OVERRULED. 

Fraud (5^th COA) - Overruled

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

The Court previously sustained the demurer to the fifth cause of action because the FAC failed to allege facts speaking to scienter and failed to specify which agent of Counterpoint affected this fraud. The SAC now alleges the following facts:

About September 15, 2014, the day after the fire, Plaintiff spoke with BACA, who told Plaintiff not to worry and that BACA and COUNTERPOINT would get the insurance benefits due to Mr. de la Garza and would be in charge of everything to get the Premises repaired and return Mr. de la Garza and his family to their home. (SAC ¶ 17.) [D]espite BACA’s knowing that was not true but knowing that instead PENA would not competently or timely complete the necessary work and COUNTERPOINT would pay him Plaintiff’s money so COUNTERPOINT could keep a flow of public adjusting business from VICS. (SAC ¶ 56.)

Ana Melrose, on behalf of COUNTERPOINT, assured Mr. de la Garza that COUNTERPOINT would address the delays in VICS’ work at the Premises and would supervise and manage PENA so that Plaintiff’s home would be repaired, and Plaintiff and his family could move back into it soon. (SAC ¶ 59.)

PENA called COUNTERPOINT’s apprentice to come to the Premises, and PENA told Mr. de la Garza that COUNTERPOINT would get Plaintiff’s money from the insurance company and would take care of paying PENA to repair the Premises and return Mr. de la Garza and his family to their home. (SAC ¶ 60.)

Demurring Parties argue that the statement attributed to Baca in the cause of action for fraud is identical to the statement first attributed to Counterpoint’s apprentice.

On September 14, 2014, the apprentice, on behalf of COUNTERPOINT, told Mr. de la Garza that COUNTERPOINT would get Plaintiff’s money from the insurance company and would take care of paying PENA to repair the Premises and return Mr. de la Garza and his family to their home. The apprentice and PENA told Mr. de la Garza that the apprentice would be in charge of getting Mr. de la Garza and his family a place to live while VICS/PENA fixed the fire damage. (SAC ¶14.)

Plaintiff’s alleges a conspiracy between Counterpoint and Vics to induce Plaintiff to enter contract with Counterpoint. Plaintiff alleges that Vics arrived on the scene of the fire and suggested Plaintiff contract with Counterpoint to adjust his claim. (SAC ¶¶ 12-13.) Plaintiff further alleges Counterpoint knew prior to the contract that Vics did not intend to properly repair the premises. (SAC ¶ 56.) Plaintiff also alleges Counterpoint’s agents specifically represented to Plaintiff that Vics would repair the premises if they agreed to Counterpoints contract. (SAC ¶ 59.)

The Court finds these allegations sufficient to cure the defects of the FAC. Plaintiff now asserts specific facts as to Counterpoint’s knowledge of misleading statements and who at Counterpoint made such statements.

Accordingly, the demurrer to the fifth cause of action as to Counterpoint is OVERRULED.

Motion to Strike - Denied

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

Demurring Parties move to strike the punitive damages requested in Plaintiff’s fourth, fifth, and sixth cause of action. Demurring Parties contend that

California Civil Code (“Cal. Civ. Code”) § 3294 statutorily permits punitive damages for claims of fraud. Cal. Civ. Code § 3294(c)(3) defines fraud as “[A]n intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Here, the Court finds Plaintiff has pled his cause of action for fraud with sufficient specificity and the motion to strike based on failure to allege fraud must fail. As the breach of fiduciary duty claim is also predicated on fraud, it too survives the motion to strike.

Accordingly, Plaintiffs motion to strike the requests for punitive damages in the fourth and fifth causes of action is DENIED.

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

Defendants Counterpoint and Gary Baca’s Demurrer and Motion to Strike came on regularly for hearing on August 18, 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 AS TO THE FIRST, THIRD, AND FIFTH CAUSES OF ACTION PERTAINING TO DEFENDANT BACA (ALTER EGO) IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE DEMURRER AS TO THE FOURTH CAUSE OF ACTION PERTAINING TO DEFENDANT BACA IS OVERRULED.

THE DEMURRER AS TO THE FIRST, THIRD, AND FIFTH CAUSES OF ACTION PERTAINING TO DEFENDANT COUNTERPOINT IS OVERRULED.

THE MOTION TO STRIKE PUNITIVE DAMAGES IS DENIED.  

IT IS SO ORDERED.

DATE:  August 18, 2023                              

_______________________________

                                                                                        F.M. TAVELMAN, Judge

                                                                                  Superior Court of California

      County of Los Angeles