Judge Joel R Wohlfeil, Case Number: 37-2023-00048258-CU-BT-CTL, Date: 2024-06-27 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00048258-CU-BT-CTL, Date: 2024-06-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 24, 2024

06/27/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Business Tort Demurrer / Motion to Strike 37-2023-00048258-CU-BT-CTL ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES LP [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/08/2024

1. The general Demurrer (ROA # 230, 261) of Defendants C5 RODEO MT, LLLP AND C5 RODEO COMPANY, INC. (collectively 'C5 Rodeo') to cause of action 1 in the Second Amended Complaint ('SAC') of Plaintiffs ANIMAL PROTECTION AND RESCUE LEAGUE, INC. and SHOWING ANIMALS RESPECT AND KINDNESS ('Plaintiffs'), is SUSTAINED.

This ruling completely disposes of this action as against these Defendants, and these Defendants are entitled to a judgment in their favor.

2. The general Demurrer (ROA # 256) of Defendant / Respondent PADRES, L.P. ('Defendant') to cause of action 1 in the Verified Second Amended Complaint ('SAC') filed by Plaintiffs / Petitioners ANIMAL PROTECTION AND RESCUE LEAGUE, INC. and SHOWING ANIMALS RESPECT AND KINDNESS ('Plaintiffs'), is SUSTAINED.

This ruling completely disposes of this action as against this Defendant, and this Defendant is entitled to a judgment in its favor.

Both rulings are premised on the analysis set forth below.

The scope of the unfair competition law (Bus. & Prof. Code 17200) is broad. Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163, 180.

It does not proscribe specific practices, but rather defines 'unfair competition' to include 'any unlawful, unfair or fraudulent business act or practice.' Id. Its coverage is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law. Id. By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Id. '... [T]he express codified purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act.' Scripps Health v. Marin (1999) 72 Cal. App. 4th 324, 332 (internal citations omitted).

'... [I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have Calendar No.: Event ID: TENTATIVE RULINGS

3129596 CASE NUMBER: CASE TITLE: ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES 37-2023-00048258-CU-BT-CTL been completed .... It should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future.' Id. (internal citations omitted).

Injunctive relief has no application to wrongs which have been completed, absent a showing that past violations will probably recur. Madrid v. Perot Systems Corp. (2005) 130 Cal. App. 4th 440, 465.

The injunctive remedy should not be exercised in the absence of evidence that the acts are likely to be repeated in the future. Id. A UCL cause of action requires the same showing: a threat that the misconduct to be enjoined is likely to be repeated in the future. Id. 'Here, plaintiff's complaint did not allege any facts that another incident is likely to occur.' Id. In State of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal. 3d 1147, the opinion states: 'The Unfair Practices Act, Business and Professions Code, section 17000 et seq., defines 'unfair competition' as, inter alia, 'unlawful, unfair or fraudulent business practice. ...' (Id., � 17200, italics added.) As we have said, the statute is directed at ' 'on-going wrongful business conduct'....' (People v. McKale (1979) 25 Cal. 3d 626, 632.) Thus the 'practice' requirement envisions something more than a single transaction, as in this case; it contemplates a ' 'pattern' ... of conduct' (Barquis v. Merchants Collection Assn. (1972) 7 Cal. 3d 94, 108), 'on-going ... conduct' (id., at p. 111), 'a pattern of behavior' (id., at p. 113), or 'a course of conduct.' (Ibid.) No such 'practice' is alleged or shown here. The mere fact that the Attorney General asserts in his brief that defendants have engaged in certain unlawful practices in the past, and may do so in the future, is not enough. The complaint attacks only the merger, and no ongoing conduct; hence, it does not state a cause of action under Business and Professions Code section 17200.' Id. at 1169, 1170.

Paragraphs 4, 42, 149 and 169 of the SAC allege Defendants C5 and Padres have hosted one previous rodeo in San Diego in January 2024, and that they have plans to do so again in the future.

Paragraph 177 alleges the Padres 'plans to submit an event permit to the City of San Diego for future rodeos in PETCO Park.' Paragraphs 170 and 171 allege Defendants have submitted lobbyist registration forms indicating they plan to lobby the city to permit future rodeos.

Paragraph 172 alleges: 'Defendants' opposition to a complete ban shows that they intend to continue engaging in such unlawful acts in connection with putting on a rodeo in the future.' These allegations are insufficient to support a claim for injunctive relief. Facts are not alleged supporting the threat of ongoing conduct, or that prohibited conduct is likely to reoccur within the immediate future.

Most of the allegations are conclusory. The present lobbying efforts do not lead to an inference that Defendants plan to stage another rodeo in 2025, or that they have plans to make the Petco Park rodeo an annual event. The lobbying efforts could just as easily be protective conduct designed to ensure the ability to stage a rodeo within the next five or ten years. Something more immediate and concrete is required to force Defendants to litigate this issue now.

The Demurrers are sustained because the SAC fails to allege facts supporting injunctive relief. Leave to amend will not be provided because the SAC represents Plaintiffs' second attempt to plead adequate facts supporting the stated cause of action.

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3129596 CASE NUMBER: CASE TITLE: ANIMAL PROTECTION AND RESCUE LEAGUE INC VS. PADRES 37-2023-00048258-CU-BT-CTL Given this ruling, the Court does not address Defendant C5's arguments with respect to the addition of Defendant Eastman. Defendant Eastman will have the opportunity to make arguments on his own behalf.

_____ 3. The general Demurrer (ROA # 235, 263, 268) of Defendants / Respondents Todd Gloria and City of San Diego ('Defendant') to causes of action 2 and 3 in the Verified Second Amended Complaint ('SAC') for Injunctive Relief and Petition for Writ of Mandate, is OVERRULED.

These Defendants are ordered to file and serve their Answer within twenty (20) days of this hearing.

Defendant's Request (ROA # 271) for judicial notice is GRANTED.

Plaintiffs' Request (ROA # 277) for judicial notice is GRANTED.

Plaintiffs' objections (ROA # 281) are SUSTAINED.

These Defendants filed their original Demurrer papers on May 8, 2024 (ROA #235) with a May 31, 2024 hearing date. However, on May 14, 2024, the Court issued an order continuing this hearing date (ROA # 254). On May 31, 2024, these Defendants filed a 'Notice of Withdrawal of Defendants City of San Diego and Mayor Todd Gloria's Demurrer to Plaintiffs' Verified Second Amended Complaint for Injunctive Relief and Petition for Writ of Mandate' (ROA # 263). As a result, this Demurrer is MOOT and cannot be considered by the Court.

On June 4, 2024, these Defendants filed a Demurrer for the new hearing date (ROA # 268). These papers were electronically served on the same date (ROA # 272). This service is defective because it occurred less than 16 Court days plus 2 calendar days (for electronic service) before this hearing date.

See Code Civ. Proc. 1005(b). The reply does not address the issue of defective service even though this was raised in the opposition. The Demurrer is overruled on this basis.

This ruling is made without prejudice to these Defendants' ability to file a different motion raising the same issues.

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