Judge: Marcella O. Mclaughlin, Case: 37-2023-00009701-CU-OR-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00009701-CU-OR-CTL DWAYNE P PATENAUDE TRUSTEE OF THE DWAYNE P PATENAUDE TRUST VS PRESIDIO CORNERSTONE LAUREL HEIGHTS 80 LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/27/2023

A. The demurrer to the verified FAC is SUSTAINED in part and OVERRULED in part.

The special demurrer to the entire FAC based on noncompliance with CRC 2.112(3) is sustained with leave to amend as to count 3 and otherwise overruled. While it is unclear which 'plaintiff' is asserting the claim for prescriptive easement (FAC at ¶ 82), the remaining claims appear to be brought by all plaintiffs (see id. at ¶¶ 67, 75, 90, 96, 102, 110, 119, 129, 145). Thus, counts 1-2 and 4-10 are not 'so incompressible' that defendants are unable to reasonably respond. Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.

The general and special demurrers to counts 1-7 based on lack of standing are overruled. 'A demurrer lies for lack of standing when 'the defect appears on the face of the pleading or from judicially noticeable matters.' Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 752. Here, plaintiffs allege that Patenaude Enterprises owns the subject property. (FAC at ¶ 4.) Liberally construing this fact, the court is unable to conclude at this stage in the proceedings that Patenaude Enterprises lacks standing as a matter of law. See Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.'); see also Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123 ('[A]gainst a general demurrer the only requirement is that upon a consideration of all the facts stated it must appear plaintiff is entitled to some relief, notwithstanding that the facts may be inartfully stated, or may be intermingled with a statement of other facts irrelevant to the cause of action, or plaintiff may demand relief to which he is not entitled under the facts alleged.').

The general demurrer to count 9 is sustained with leave to amend. 'The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.' West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792. Fraud must be pleaded specifically; general and conclusory allegations do not suffice. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. In this case, plaintiffs have failed to plead specific facts showing when the alleged misrepresentations were made, that defendant Kretowicz knew his statements were false at the time they were made, or that plaintiffs actually relied on his misrepresentations. See Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 513 ('The must plead that he believed the representations to be true (or that he was ignorant of their falsity which amounts to the same thing), and that in reliance thereon (or induced thereby) he entered into the transaction.').

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3057908  50 CASE NUMBER: CASE TITLE:  DWAYNE P PATENAUDE TRUSTEE OF THE DWAYNE P PATENAUDE  37-2023-00009701-CU-OR-CTL B. The unopposed motion to strike portions of the FAC is DENIED to the extent it is not mooted by the court's ruling on defendants' companion demurrer.

The motion is denied as to the request to strike references to the individual defendants. '[M]anagers of limited liability companies are not immune from personal liability if they have participated in tortious or criminal conduct while performing duties as managers.' People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203, 1207. Moreover, the court has discretion to grant or deny a motion to strike and, even where an allegation may be unwarranted, the court is not required to strike the allegation at the pleading stage and may instead simply deny the request on the merits at a later stage of the case or ignore the allegation. See Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 242. Here, the court declines to edit or re-write the FAC and will address possible unmeritorious allegations, if necessary, at a later stage of the case. See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683 ('[U]se of the motion to strike should be cautious and sparing. We have no intention of creating a procedural 'line item veto' for the civil defendant.').

The motion is denied as to the request to strike references to Patenaude Enterprises. As discussed in the ruling on defendants' companion demurrer, the court is unable to conclude on this limited record that Patenaude Enterprises lacks standing to pursue the real property claims.

C. In issuing these rulings, the court has not considered the deposition testimony cited in defendants' reply brief. '[A] demurrer looks only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter.' Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 239 fn. 2.

D. Defendants' request for judicial notice is granted as to Exhibit 1 and denied as to Exhibit 2. Evid.

Code § 452(d).

E. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, plaintiffs are granted leave to amend counts 3 and 9. The second amended complaint must be filed and served by March 25, 2024.

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