Judge: Marcella O. Mclaughlin, Case: 37-2023-00015974-CU-CO-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Contract - Other Demurrer / Motion to Strike 37-2023-00015974-CU-CO-CTL LOUIS VS GSG PL INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/22/2024

Cross-defendant's demurrer to the cross-complaint is SUSTAINED in part and OVERRULED in part.

A. The demurrer to counts 1 and 4 are overruled. While the cross-complaint is hardly a model of clarity, sufficient facts have been pled to state claims for violation of Business & Professions Code section 6148 and breach of contract. '[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.' Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123. Moreover, the fact that cross-defendant may no longer be pursuing certain claims in the Second Amended Complaint is irrelevant. '[A] cross-complaint is a separate action, severable from the original complaint and answer.' Coachella Valley Mosquito and Vector Control Dist. v. City of Indio (2002) 101 Cal.App.4th 12, 16.

B. The demurrer to count 2 is overruled. The court is unable to conclude on this limited record that the doctrine of judicial estoppel applies as a matter of law. See Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 1000 ('[A] defense of judicial estoppel raises factual issues.'); see also Knickerbocker v. City of Stockton (1988 199 Cal.App.3d 235, 239 fn. 2 ('[A] demurrer looks only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter.').

C. The demurrer to count 3 is sustained with leave to amend. Insufficient facts have been pled with the required particularity to state a claim for false promise. Specifically, cross-complainants have failed to allege that cross-defendant made the promise to Rickards without an intention to perform it. See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061-62.

D. The demurrer to count 5 is overruled. Cross-complainants allege that Rickards is over 65 years old, that cross-defendant 'took control' of the Hancock Property, and that cross-defendant did so for a wrongful use and/or with the intent to defraud. (See Cross-Complaint at ¶¶ 59-64.) These facts – which the court must liberally construe and accept as true – are sufficient to state a claim for financial elder abuse. See Welf. & Inst. Code § 15610.30(a)(1), (b).

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, cross-complainants are granted leave to amend count 3. The first amended cross-complaint must be filed and served by June 24, 2024.

Calendar No.: Event ID:  TENTATIVE RULINGS

3106763  7 CASE NUMBER: CASE TITLE:  LOUIS VS GSG PL INC [E-FILE]  37-2023-00015974-CU-CO-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

3106763  7