Judge: H. Jay Ford, III, Case: 22SMCV02055, Date: 2023-08-03 Tentative Ruling

Case Number: 22SMCV02055    Hearing Date: August 3, 2023    Dept: O

  Case Name:  nZania, LLC v. Kapor, et al.

SUBJECT:                 DEMURRER TO FIRST AMENDED ANSWER

MOVING PARTY:   Plaintiff nZania, LLC

RESP. PARTY:         Defendants Jeffrey H. Kapor and Buchalter, a Professional Corporation

TENTATIVE RULING

Plaintiff nZania, LLC’s Demurrer to the First Amended Answer is SUSTAINED WITHOUT LEAVE as to the 9^th affirmative defense for lack of deception, SUSTAINED with 10 days leave as to the 11^th affirmative defense for estoppel and OVERRULED as to the 1^st affirmative defense for failure to state a cause of action, 2^nd affirmative defense for laches, 3^rd affirmative defense (proximate cause-other persons), 7^th affirmative defense (proximate cause-plaintiff), 8^th affirmative defense (intervening and superseding cause) and 10^th affirmative defense for waiver.  Defendants’ RJN is granted. 

9^th affirmative defense for lack of deception—sustained without leave to amend. WITHOUT LEAVE : The 9^th affirmative defense denies that the alleged misrepresentation/concealment was deceptive or fraudulent.  The 9^th affirmative defense is not an affirmative defense, because it does not raise new matter and only denies an essential allegation of Plaintiff’s fraud claim.  See State Farm Mut. Auto. Ins. Co., supra, 228 Cal.App.3d at 725.

 11^th affirmative defense for estoppel – sustained with leave to amend: “Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.”  Migliore v. Mid-Century Ins. Co. (2002) 97 Cal.App.4th 592, 606.  Defendant fails to sufficient allege estoppel by Plaintiff based on Plaintiff’s affirmative decision not to name Defendants in the action filed against BB Dakota and omitting all references to Defendants’ alleged role in the wrongdoing.  See FAA, ¶11.  Defendant alleges that it relied on Plaintiff’s decision not to name Defendants in the BB Dakota action or earlier than 10-27-22.  Id. at ¶11.  Defendant, however, fails to allege that Plaintiff intended for Defendants to rely on its decision not to name them, or that Defendants had the right to believe that Plaintiff intended for Defendants to rely on Plaintiff’s decision. 

All remaining affirmative defenses are sufficiently alleged and cannot be adjudicated as a matter of law at this stage.