Judge Matthew C. Braner, Case 37-2021-00041852-CU-BT-CTL 2024-03-15 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2021-00041852-CU-BT-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 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Business Tort Demurrer / Motion to Strike 37-2021-00041852-CU-BT-CTL MACCHARLES VS BRAND VENTURES INC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

The motion to be relieved as counsel submitted by counsel for Defendant Brand Ventures, Inc.

(attorneys Derek Newman, Derek Linke, and Paul Wellborn) is GRANTED.

Defendant Burke Oliver Concepts, Inc. ('Burke')'s demurrer to the second amended complaint is SUSTAINED without leave to amend.

Defendant Burke's motion to strike is denied as moot.

Plaintiff Bryce MacCharles did not file an opposition to Defendant Burke's motions. Pursuant to this court's local rules, such failure to respond will be deemed a concession the motions have merit. (San Diego Local Rule 2.1.19.B.) Motion to be Relieved as Counsel The determination whether to grant or deny a motion to withdraw as counsel is within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133; Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.) An attorney may withdraw from a case if withdrawal can be accomplished without undue prejudice to the client's interests. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) Here, attorneys Linke and Wellborn sufficiently explained in theirs declarations in general terms and without breaking attorney-client privilege why the motion to be relieved as counsel should be granted.

Trial is currently set for July 2024, leaving Defendant Brand Ventures, Inc. sufficient time to secure new counsel before trial. Attorneys Linke and Wellborn have otherwise complied with the applicable procedural requirements and thus, the motion to be relieved as counsel is conditionally granted.

The ban on corporate self-representation also does not prevent the court from granting a motion to withdraw as attorney of record, even if it leaves the corporation without representation. 'Such an order puts pressure on the corporation to obtain new counsel or risk forfeiting important rights through nonrepresentation.' (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284, fn. 5.) Defendant Brand Ventures, Inc. and its representatives are advised of the necessity to be represented by an attorney. (Ibid.) Counsel is directed to provide a revised form order for the court's signature that includes the parties Calendar No.: Event ID: TENTATIVE RULINGS

3063041 15 CASE NUMBER: CASE TITLE: MACCHARLES VS BRAND VENTURES INC [E-FILE] 37-2021-00041852-CU-BT-CTL appearing at the hearing. Within five court days of entry of the signed revised form order, counsel shall then serve: (1) notice of this ruling; and (2) the signed form order on all parties. (Cal. Rules of Ct., rule 3.1362, subd. (e).) Attorneys Linke and Newman and their law firm, the Newman LLP, and attorney Wellborn and his law firm, Wellborn, Wallace & Mullman, LLC, will be relieved as counsel as of the date the proof of service of this order and the signed form order is filed with the court. (Ibid.) Demurrer and Motion to Strike A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Defendant Burke again demurs to the first cause of action for violation of Business and Professions Code section 17529.5, this time in the second amended complaint ('SAC'), on the basis Plaintiff has not adequately alleged Defendant 'advertise[d] in' an unlawful email message. Defendant also demurs to the second cause of action for declaratory relief on the basis it is wholly derivative of the first cause of action, which cannot survive demurrer. As it did with respect to the first amended complaint ('FAC'), the court agrees that section 17529.5 is limited to those who 'advertise in' an unlawful commercial email advertisement and does not apply to those who merely initiate (i.e., send or transmit) the unlawful email. In that regard, the court is unpersuaded it should depart from its prior analysis of the relevant statutory language. (See ROA #124, Oct. 13, 2023 minute order, p. 2.) As a result of the court's earlier analysis, the court sustained Defendant Burke's demurrer to the FAC, but gave Plaintiff leave to file an amended complaint that either alleges alternative emails in which Defendant Burke advertised, or adds a statutory claim applicable to those who have initiated an unsolicited commercial email advertisement. (ROA #124, p. 2.) It appears Plaintiff lacks the facts to allege that might cure his complaint's deficiency as against Defendant Burke, because in the SAC, the same 15 emails are attached as exhibits to the complaint, and the same two causes of action are alleged.

Accordingly, Defendant Burke's demurrer is sustained without leave to amend.

Defendant Burke is instructed to submit a proposed judgment for the court's signature.

The minute order is the order of the court.

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