Judge: H. Jay Ford, III, Case: 22SMCV02062, Date: 2025-01-09 Tentative Ruling

Case Number: 22SMCV02062    Hearing Date: January 9, 2025    Dept: O

  Case Name:  Jeremy Findel v. Peter Koral, et al.

SUBJECT:                DEMURRER TO COMPLAINT W/O MOTION TO STRIKE

MOVING PARTY:  Defendants Blaze Pizza International, LLC, Blaze Pizza Operations, LLC, and Blaze Pizza, LLC

RESP. PARTY:        Plaintiff Jeremy Findel

TENTATIVE RULING

            Defendants Blaze Pizza International, LLC, Blaze Pizza Operations, LLC, and Blaze Pizza, LLC(“Blaze Pizza Defendants”) Demurrer is SUSTAINED without leave to amend as to the 4^th, 5^th, and 7^th causes of action in the SAC. The Blaze Pizza Defendants are no longer a party to the case.

REASONING

I.                   Demurrer to 4^th cause of action for Aiding and Abetting – SUSTAINED without leave to amend

“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Plaintiff Jeremy Findel (“Findel”) was not given leave to amend the FAC to add the cause of action for aiding and abetting as to the Blaze Pizza Defendants within the 10-17-23 Minute Order, nor was this new cause of action “within the scope of the order granting leave to amend.” (Ibid.; see 10-17-23 Minute Order.) Thus, the Demurrer to the 4^th cause of action for Aiding and Abetting is SUSTAINED without leave to amend. 

II.                Demurrer to 5^th cause of action for Civil Conspiracy – SUSTAINED without leave to amend

When a court grants a demurrer with leave to amend, a plaintiff is limited to making amendments as authorized by the court’s order. (See People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785 [when a Court sustains a demurer with leave to amend “the granting of leave to amend is not a sanctioning of a particular amendment which the pleader has submitted to the trial court. Rather, as pointed out in Taliaferro, such granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.”)

Findel was not given leave to amend the 5^th cause of action to add Blaze Pizza Defendants to the cause of action within the 10-17-23 Minute Order sustaining the Demurrer to the FAC with leave to amend. (See 10-17-23 Minute Order.) Findel can only make amendments as authorized by court order, and thus Findel did not have the authority to include the Blaze Pizza Defendants to the civil conspiracy cause of action.

The Demurrer to the 5^th cause of action for civil conspiracy is SUSTAINED without leave to amend.

III.             Demurrer to 7^th cause of action for Violation of Cal. Bus. Prof. Code § 17200, et seq. (“UCL”)”– SUSTAINED WITHOUT LEAVE TO AMEND

Findel has not included any additional facts or revisions to the 7^th cause of action in the SAC that can be attributed to the Blaze Pizza Defendants (See SAC, ¶¶ 198–214.) Findel’s 7^th cause of action thus contains the same defects as to the Blaze Pizza Defendants in the SAC as were at issue in the FAC. Specifically, Findel does not include any factual allegations as to the Blaze Pizza Defendants to plead their assistance and participation in the matter, representations made to Findel, their benefit received, and what duty was owed to Findel. Additionally, Blaze Pizza Defendants argue the claim is unsupported by any other cause of action within the SAC as to pertains to Blaze Pizza Defendants specifically since Findel “continued to really on his UVTA causes of action which are no longer plead against the Blaze Pizza Defendants.” (Demurrer, p. 17: 9–14; see SAC, ¶ 204.)