Judge: Marcella O. Mclaughlin, Case: 37-2023-00035338-CU-OE-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Other employment Demurrer / Motion to Strike 37-2023-00035338-CU-OE-CTL MOODY VS ARTHROSI THERAPEUTICS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/20/2023

The demurrer to the complaint is OVERRULED.

A. The demurrer to count 1 is overruled.

'A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom.' McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489. 'In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.' Code Civ. Proc. § 457.

Here, plaintiff alleges that he 'fully and completely performed all of his obligations, duties and responsibilities under the Agreement[.]' (Complaint at ¶ 19.) This fact – which the court must liberally construe and accept as true – is sufficient for purposes of pleading plaintiff's performance. See 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.').

B. The demurrer to count 2 is overruled. The court is unable to conclude as a matter of law that severance payments are not 'wages' under Labor Code section 200. Defendant's reliance on Powell and Byrd v. California Unemployment Insurance Appeals Board (1965) 63 Cal.2d 103 is misplaced as that case concerned whether severance payments constituted wages for purposes of unemployment insurance. '[A]n opinion is not authority for a proposition not therein considered.' Ginns v. Savage (1964) 61 Cal.2d 520, 524 fn. 2.

C. The demurrer to count 3 is overruled.

Conversion is the wrongful exercise of dominion over the personal property of another. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 119. 'The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages.' Id. Calendar No.: Event ID:  TENTATIVE RULINGS

3038095  41 CASE NUMBER: CASE TITLE:  MOODY VS ARTHROSI THERAPEUTICS INC [IMAGED]  37-2023-00035338-CU-OE-CTL In this case, for the reasons discussed above, sufficient facts have been pled to state a claim for conversion. Whether plaintiff will be able to prove these facts is a question for another day.

D. In issuing this ruling, the court has not considered the declaration of Philip Moody (ROA 18). Nor has the court considered those portions of the declaration of Karin L. Backstrom (ROA 11) which discuss matters unrelated to the meet and confer requirements under Code of Civil Procedure section 430.41.

'[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.

E. Defendant must file and serve an answer to the complaint by December 26, 2023.

Calendar No.: Event ID:  TENTATIVE RULINGS

3038095  41