Judge: John C. Gastelum, Case: 21-01203565, Date: 2022-11-01 Tentative Ruling
Demurrer to First Amended Complaint (FAC)
Tentative Ruling: Defendants Scott Thorpe, Michelle Thorpe, Evan Paul, Elliott Broidy, Evan Paul Auto Capital, Evan Paul Auto Leasing, and Evan Paul Motorcars’s filed a Demurrer to the FAC.
The hearing on this Demurrer was previously continued from September 27, 2022 to November 1, 2022 because the demurring parties failed to file a proof of service of the demurrer and supporting documents and failure to meet and confer as required by Code of Civil Procedure section 430.41. (ROA # 258.) While the demurring parties filed a proof of service as required by the September 27, 2022 Minute Order, demurring parties failed to file a supplemental declaration regarding their further meet and confer efforts. Therefore, the demurring parties failed to follow the court’s order.
The court rules as follows on the Demurrer to the First Amended Complaint:
• The Court finds the case falls within an exception to the worker’s compensation exclusivity rule pursuant to Labor Code section 3602(b)(1). Plaintiff sufficiently pleads evidence of ratification in paragraphs 14, 16, 18, 19, 21-24, 27, 30, 33, 36-40, and 56 such that the exception applies on the face of the First Amended Complaint. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1490–1491; Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1430; Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617.)
• The Demurrer is OVERRULED as to the first cause of for assault against Scott Thorpe and Michelle Thorpe. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) Paragraphs 16-19 and 58-62 sufficient allege an assault cause of action against Scott Thorpe and paragraphs 22 and 63-67 sufficiently allege an assault cause of action against Michell Thorpe. While “heated verbal arguments” do not amount to assault, Plaintiff alleges that two bodyguards had to “contain Michelle from also attacking Ashkon as she was behaving erratically, aggressively, and confrontational towards Ashkon.” (SAC, ¶ 22.) Such allegations coupled with those in paragraphs 63-67 that he reasonably believed she was going to carry out the attack are sufficient to constitute a cause of action for assault against Michelle.
• The Demurrer is OVERRULED as to the third cause of action for intentional infliction of emotional distress against Scott Thorpe, Evan Paul, and Elliott Broidy. (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 231.) Paragraphs 14- 19, 21-24, 27, 30, 33, 36-40, 56, 58-62, and 74-80 sufficiently allege intentional infliction of emotional distress.
• The Demurrer is OVERRULED as to the fourth cause of action for ratification against Evan Paul Auto Capital, LLC, Evan Paul Auto Leasing, LLC dba Redline Acceptance, Evan Paul Motorcars, Evan Paul, and Elliott Broidy. Plaintiff sufficiently pleads evidence of ratification in paragraphs 14, 16, 18, 19, 21-24, 27, 30, 33, 36-40, and 56.
• The Demurrer is OVERRULED as to the fifth cause of action for defamation against Evan Paul. (Civ. Code, §§ 45 and 46.) Paragraphs 44-51 and 87-94 sufficiently state a defamation cause of action.
• The Demurrer is OVERRULED as to the sixth cause of action for wrongful termination in violation of public policy against Evan Paul Auto Capital, LLC, Evan Paul Auto Leasing, LLC dba Redline Acceptance, and Evan Paul Motorcars. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 155; Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1238–1239.) Paragraphs 11, 56, 99, and 101 sufficiently allege a wrongful termination in violation of public policy cause of action.
• The Demurrer is OVERRULED as to the seventh cause of action for retaliation in violation of public policy against Evan Paul Auto Capital, LLC, Evan Paul Auto Leasing, LLC dba Redline Acceptance, and Evan Paul Motorcars. Paragraphs 32-34, 99, 37-42, and 102-113 sufficiently allege a retaliation in violation of public policy cause of action.
• The Demurrer is OVERRULED as to the eighth cause of action for failure to pay wages upon termination against Evan Paul Auto Capital, LLC, Evan Paul Auto Leasing, LLC dba Redline Acceptance, and Evan Paul Motorcars. Paragraphs 56 and 114-119 sufficiently state a failure to pay wages upon termination cause of action.
• The Demurrer is OVERRULED as to the ninth cause of action for conversion against Evan Paul Auto Capital, LLC, Evan Paul Auto Leasing, LLC dba Redline Acceptance, and Evan Paul Motorcars. (Los Angeles Federal Credit Union v. Madatyan (2012) 209 Cal.App.4th 1383, 1387.) Paragraphs 121-125 sufficiently allege a conversion cause of action.
Defendants shall file an answer to the First Amended Complaint within 30 days of the notice of ruling.
Prevailing party to give notice.