Judge: Holly J. Fujie, Case: 22STCP01600, Date: 2023-09-21 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 22STCP01600    Hearing Date: December 15, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTY: Defendant/Cross-Complainant JPMorgan Chase Bank, N.A. (“Moving Defendant”)

The Court has considered the moving papers.  No opposition papers were filed.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure section 1005, subdivision (b).

BACKGROUND

The currently operative first amended complaint (the “FAC”) alleges: (1) breach of partnership agreement; (2) breach of fiduciary duty; (3) misrepresentation (fraud); (4) breach of implied covenant of good faith and fair dealing; (5) declaratory relief; (6) unjust enrichment; (7) negligence; (8) constructive trust; and (9) accounting. 

On November 3, 2023, Moving Defendant filed a demurrer (the “Demurrer”) to the seventh of action for negligence on the grounds that the FAC fails to state facts sufficient to constitute a cause of action.

REQUEST FOR JUDICIAL NOTICE

            Defendants’ Request for Judicial Notice is GRANTED as to the documents and their legal effect, but not to the truth of the matters asserted therein.  (See Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752-54.)

DISCUSSION

Meet and Confer

            The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

As it is unopposed, the Court SUSTAINS the Demurrer with 20 days leave to amend.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)[1]

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

      Dated this 15th day of December 2023