Judge Marcella O. Mclaughlin, Case Number: 37-2024-00001872-CU-FR-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2024-00001872-CU-FR-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 09:00:00 AM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Fraud Demurrer / Motion to Strike 37-2024-00001872-CU-FR-CTL ROTTER VS ROTTER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/05/2024

1. REQUESTS FOR JUDICIAL NOTICE Defendant's requests for judicial notice (ROA 14, 18) are granted. See Evid. Code § 452(c); see also Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.

'However, the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein.' Poseidon Development, 152 Cal.App.4th at 1117. '[A] court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.' Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115 2. DEMURRER TO COMPLAINT The demurrer to the complaint is SUSTAINED in part and OVERRULED in part.

A. The demurrer to count 2 is overruled. Liberally construing the complaint, the court finds that it sufficiently states a claim for constructive trust. See Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990. '[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.

B. The demurer to count 3 is overruled. Plaintiff has alleged sufficient facts to state a claim for conversion. See Fremont Indemnity, 148 Cal.App.4th at 119; see also Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 902 ('A general allegation that the defendant 'converted the property to his own use' suffices to allege conversion.'). While the reference to the Chula Vista real property is not actionable (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1295), it is well-settled that '[a] demurrer must dispose of an entire cause of action to be sustained.' Fremont Indemnity, 148 Cal.App.4th at 119.

C. The demurrer to count 4 is sustained with leave to amend. Insufficient facts have been pleaded with the required particularity to state a claim for fraud. There are no facts showing how, when, where, and by what means the alleged misrepresentations were tendered. See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793; see also Dowling v. Spring Val. Water Co. (1917) 174 Cal. 218, 221 ('[I]t is not sufficient to allege fraud or its elements upon information and belief unless the facts upon Calendar No.: Event ID: TENTATIVE RULINGS

3112049 67 CASE NUMBER: CASE TITLE: ROTTER VS ROTTER [IMAGED] 37-2024-00001872-CU-FR-CTL which the belief is founded are stated in the pleading.').

D. The demurrer to count 5 is sustained without leave to amend. Plaintiff has not opposed the demurrer to the negligence claim. 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, plaintiff has failed to plead sufficient facts to state a claim for negligence. Code Civ. Proc. § 430.10(e).

3. MOTION TO STRIKE The motion to strike portions of the complaint is GRANTED in part and DENIED in part.

A. The motion to strike the punitive damages allegations is granted with leave to amend. Insufficient facts have been pleaded to establish oppression, fraud, or malice within the meaning of Civil Code section 3294(c). As discussed above in connection with the ruling on defendant's companion demurrer, plaintiff has not adequately alleged intentional misrepresentation for purposes of 'fraud.' With respect to 'oppression' and the second prong of 'malice,' the facts pled do not show 'despicable conduct' – i.e., conduct that is 'so vile, base, or contemptible that it would be looked down on and despised by reasonable people.' CACI 3940. Finally, there are no facts showing an intent to injure plaintiff, as required for the first prong of 'malice.' B. The motion to strike the prayer for treble damages is granted with leave to amend. Plaintiff has failed to allege a statutory basis to support a request for treble damages.

C. The motion to strike the prayer for attorney's fees is denied. '[T]here is no requirement that the ground for a fee award be specified in the pleadings.' Yassin v. Solis (2010) 184 Cal.App.4th 524, 533.

D. The motion to strike the remaining challenged allegations is denied. The court is not persuaded that these allegations are irrelevant or improper as a matter of law. 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 complaint 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.').

4. LEAVE TO AMEND '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, plaintiff is granted leave to amend count 4, the claim for punitive damages, and the request for treble damages. The first amended complaint must be filed and served by July 8, 2024.

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