Judge: Matthew C. Braner, Case: 37-2023-00021856-CU-PO-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  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00021856-CU-PO-CTL WAGNER VS SAN DIEGO FLOOD BUSTERS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Cross-Defendant San Diego Flood Busters, Inc. ('SDFB')'s demurrer Cross-Complainant DBJS, Inc.'s cross-complaint is SUSTAINED.

Cross-Defendant SDFB's motion to strike is GRANTED in part.

Cross-Defendants San Diego Packouts, LLC, Green Earth USA, LLC, Dylon Gantenhammer, Cynthia Santos, and Rafael Santiago (collectively 'the Packouts Cross-Defendants)'s demurrer to the DBJS cross-complaint is SUSTAINED.

The Packouts Cross-Defendants' motion to strike is DENIED.

The court will disregard the sur-reply filed by Cross-Complainant DBJS without leave of court.

Cross-Defendant SDFB's Demurrer A demurrer shall be sustained if the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10(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.) Cross-Defendant SDFB demurs to the first through sixth causes of action in the cross-complaint, for breach of contract, intentional interference with a contractual relationship, intentional interference with prospective economic advantage, unfair business practices, conversion, and unjust enrichment, respectively.

As to the first cause of action, the complaint does not allege the existence of a contract between Cross-Defendant SDFB and Cross-Complainant. The only contract alleged is a 'verbal agreement' among Cross-Complainant and Cross-Defendants Stephen LaSogga and Dylon Gantenhammer. (ROA #20, Cross-Complaint, ¶ 20.) Cross-Complainant argues that it may be inferred from the cross-complaint that Cross-Defendant LaSogga entered the verbal agreement 'on behalf of' Cross-Defendant SDFB.

However, such an inference goes too far; if Cross-Complainant's desires to plead the existence of a contract involving Cross-Defendant SDFB, it must do so plainly.

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3083100  22 CASE NUMBER: CASE TITLE:  WAGNER VS SAN DIEGO FLOOD BUSTERS INC [IMAGED]  37-2023-00021856-CU-PO-CTL Accordingly, with respect to the first cause of action, the demurrer is sustained with leave to amend.

As to the second and third causes of action, the cross-complaint does not allege the existence of a contract between Cross-Complainant and any third parties, which is a necessary element of a claim for interference with contract. (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289; see also Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) Similarly, the cross-complaint does not allege 'an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff,' which is the comparable element for a claim of interference with prospective economic advantage. (Korea Supply Co. v. Lockheed Martin Corp.

(2003) 29 Cal.4th 1134, 1153.) Cross-Complainant's allegations concerning a contractual or economic relationship are only in connection to its own contractual relationship with 'Cross-Defendants,' which makes little sense in the context of interference claims, even if the existence of a contract involving Cross-Defendant SDFB had been properly pled.

Accordingly, with respect to second and third causes of action, the demurrer is sustained with leave to amend.

The fourth cause of action for unfair business practices, as against Cross-Defendant SDFB, is not adequately pled. 'A plaintiff alleging unfair business practices under [Cal. B&P §§ 17000 and 17200 et seq.] must state with reasonable particularity the facts supporting the statutory elements of the violation.' (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Here, unlike the very specific facts alleged in connection with the other cross-defendants, Cross-Complainant alleges no facts in relation to Cross-Defendant SDFB.

Accordingly, the demurrer is sustained with leave to amend as to the fourth cause of action.

The fifth cause of action for conversion also is not adequately pled. 'The gravamen of the tort [for conversion] is the defendant's hostile act of dominion or control over a specific chattel to which the plaintiff has the right of immediate possession.' (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) Thus, '[m]oney cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.' (Id. [quoting McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491].) Here, Cross-Complainant fails to allege any specific personal property or identifiable sum of money upon which a claim for conversion may be based. (ROA #20, Cross-Complaint, ¶ 56.) Accordingly, the demurrer is sustained with leave to amend as to the fifth cause of action.

Finally, as to the claim for unjust enrichment, the court is persuaded that it may be stated as a separate cause of action. Although it is true that '[t]here is no cause of action in California labeled 'unjust enrichment,'' courts have permitted such claims to be separately pleaded. (See, e.g., City of Oakland v. Oakland Raiders (2022) 83 Cal.App.5th 458, 477-78; Elder v. Pac. Bell Tel. Co. (2012) 205 Cal.App.4th 841, 857.) The elements for a claim of unjust enrichment are: 1) receipt of a benefit; and 2) unjust retention of the benefit at the expense of another. (Elder v. Pac. Bell Tel. Co., supra, 205 Cal.App.4th at p. 857.) However, 'where someone other than the plaintiff provided the benefit the defendants allegedly unjustly retained, as between the plaintiff and the defendant, the plaintiff is entitled to restitution from the defendant where the plaintiff 'has a better legal or equitable right.,'' and this requirement is 'actually highly restrictive.' (City of Oakland v. Oakland Raiders, supra, 83 Cal.App.5th at p. 479.) 'Proof merely that the defendant has received a windfall, that the [plaintiff] has been ill-treated, and that the third party's payment to the defendant (or the defendant's retention of payment as against the [plaintiff]) violates rules of good faith, basic fairness, or common decency, does not suffice to make out a claim in restitution.' (Id.) Here, Cross-Complainant alleges 'Cross-Defendants have either intentionally, knowingly, or Calendar No.: Event ID:  TENTATIVE RULINGS

3083100  22 CASE NUMBER: CASE TITLE:  WAGNER VS SAN DIEGO FLOOD BUSTERS INC [IMAGED]  37-2023-00021856-CU-PO-CTL unknowingly received the benefit of DBJS's property and resources through either embezzlement, fraud, or negligence,' and 'have not paid DBJS for the benefit of the property and resources that have received [sic] or taken from DBJS, and have continued to retain the benefit.' (ROA #20, Cross-Complaint, ¶¶ 64-65.) At best, these allegations merely set forth that Cross-Defendants received an unjust windfall; Cross-Complainant has not adequately alleged its better legal or equitable right to the windfall as against Cross-Defendant SDFB.

Accordingly, the demurrer is sustained with leave to amend as to the sixth cause of action.

Cross-Defendant SDFB's Motion to Strike A court may strike 'any irrelevant, false, or improper matter inserted in any pleading.' (Code Civ. Proc., § 436, subd. (a).) An improper claim for punitive damages can be stricken. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163-64.) Punitive damages are not favored and are generally granted only 'with the greatest caution.' (Dyna-Med, Inc. v. Fair Employment and Housing Comm'n (1987) 43 Ca1.3d 1379, 1392.) A claim for punitive damages must also be pled with specificity; conclusory allegations unsupported by facts showing malicious, fraudulent, or oppressive intentions will not suffice. (G.D.

Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32-33; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-42.) Punitive damages are available only in non-contract actions 'where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.' (Code Civ. Proc., § 3294, subd. (a). Facts that, if true, would demonstrate mere negligence or only recklessness do not warrant an award of punitive damages. (Johns-Mansville Sales Corporate Private Carriage v. Workers Comp.

Appeals Bd. (1979) 96 Cal.App.3d 923, 931.) Even gross negligence is not sufficient. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-11.) Here, the cross-complaint lacks the requisite specific, non-conclusory factual allegations of reprehensible conduct that would support a claim for punitive damages, and the cause of action for fraud is not against Cross-Defendant SDFB. Cross-Complainant's argument that Cross-Defendant SDFB engaged in fraudulent concealment is neither specifically pled nor supported by the allegations as currently pled. However, the general prayer for punitive damages is not solely against Cross-Defendant SDFB, and Cross-Complainant has pled fraud against other cross-defendants.

Accordingly, the motion to strike is granted as to all portions stated in the notice of motion except for item 7 (Prayer for Judgment, page 17, paragraph 7, line 4).

The Packouts Cross-Defendants' Demurrer and Motion to Strike The Packouts Cross-Defendants demur to the fifth and sixth causes of action in the cross-complaint, for conversion and unjust enrichment, respectively. As to the conversion claim, the court agrees it is not adequately pled. Cross-Complainant fails to allege any specific personal property or identifiable sum of money upon which a claim for conversion may be based. (ROA #20, Cross-Complaint, ¶¶ 56-57.) Cross-Complainant's arguments in opposition are nonsensical. Discovery is a tool to prove properly pled claims, and unlike a claim for conversion, fraudulent concealment may be adequately pled without identifying specific personal property or a specific, identifiable sum of money.

As to the claim for unjust enrichment, although it may be pled as a separate cause of action, the claim here is not adequately pled, for the same reasons set forth in connection with Cross-Defendant SDFB's demurrer. Cross-Complainant has not adequately alleged its better legal or equitable right to the windfall as against any of the cross-defendants.

Accordingly, Cross-Defendants' demurrer is sustained with leave to amend.

As to the motion to strike, the California Rules of Court require that the notice for a motion to strike a Calendar No.: Event ID:  TENTATIVE RULINGS

3083100  22 CASE NUMBER: CASE TITLE:  WAGNER VS SAN DIEGO FLOOD BUSTERS INC [IMAGED]  37-2023-00021856-CU-PO-CTL portion of a pleading 'quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense,' and that such specifications 'must be numbered consecutively.' (CRC 3.1322, subd. (a).) Here, the Packout Cross-Defendants did not comply with Rule 3.1322(a), as they failed to specifically set forth in the notice of motion to strike the portions of the complaint sought to be stricken. Therefore, the motion is denied.

Cross-Complainant has 30 days from entry of this order to file and serve an amended cross-complaint.

The minute order is the order of the court.

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