Judge: Marcella O. Mclaughlin, Case: 37-2023-00011968-CU-BC-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00011968-CU-BC-CTL MORAN VS KANNAWAY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/16/2023

A. The unopposed demurrer to the FAC is SUSTAINED without leave to amend.

The court deems the lack of opposition to the demurrer to be a concession as to the merits of the demurrer. SDSC Local Rule 2.1.19(B). Moreover, the FAC does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e).

Specifically, with respect to counts 1-3, insufficient facts have been pled showing the existence of a contract between plaintiff and defendants – or any other party. See Twaite v. Allstate Ins. Co. (1989) 216 Cal.App.3d 239, 232 ( 'To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.'); Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 164 ('Since the good faith covenant is an implied term of a contract, the existence of a contractual relationship is thus a prerequisite for any action for breach of the covenant.'); Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 879. ('[A] cause of action for intentional interference with contractual relations requires an underlying enforceable contract[.]').

As for count 4, plaintiff has failed to plead facts showing that defendants' alleged interference was wrongful by some measure beyond the fact of the interference itself. See Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1224; see also Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159 ('[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.').

Plaintiff has likewise failed to allege the defamation in count 5 with sufficient certainty to ''acquaint a defendant[s] with what [they] must defend against.'' Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 894 (quoting Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 832-33).

Finally, with respect to count 6, there is no private right under the Federal Trade Commission Act. See Consumer Justice Center v. Olympian Labs, Inc. (2002) 99 Cal.App.4th 1056, 1060; see also Carlson v. Coca-Cola Co. (9th Cir. 1973) 483 F.2d 279, 280.

B. The unopposed motion to strike portions of the FAC is DENIED as moot in light of the court's ruling on defendants' companion demurrer.

C. Judicial notice is taken as requested. Evid. Code § 452(c).

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3037607  42 CASE NUMBER: CASE TITLE:  MORAN VS KANNAWAY LLC [IMAGED]  37-2023-00011968-CU-BC-CTL D. This ruling is dispositive as to the entire action. All future dates – including the CMC set for today (ROA 42) – are hereby vacated. Defendants are directed to submit a form of judgment consistent with the foregoing for the court's signature.

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3037607  42