Judge: Melvin D. Sandvig, Case: 24CHCV03839, Date: 2025-02-28 Tentative Ruling

Case Number: 24CHCV03839    Hearing Date: February 28, 2025    Dept: F47

Dept. F47

Date: 2/28/25

Case #24CHCV03839

 

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed on 12/19/24.

 

MOVING PARTY: Defendant Day & Night Towing*

RESPONDING PARTY: Plaintiff RC’s Towing, Inc.

NOTICE: ok

 

Demurrer is to the entire complaint:

            1.  Intentional Interference With Contract

            2.  Intentional Interference with Prospective Economic Advantage

            3.  Trespass to Chattel

            4.  Violation of Racketeering Influence and Corrupt Organization Act (RICO) (18 USC 1962(a)-(d))

            5.  Unfair Competition

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking the prayers for punitive and/or exemplary damages and attorney’s fees. 

 

RULING: The demurrer is overruled.  The motion to strike is granted, in part, and denied, in part. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of a dispute between two competing towing companies, Plaintiff RC’s Towing, Inc. (Plaintiff) and Defendant Day & Night Towing (DNT).  On 10/23/24, Plaintiff filed this action against DNT, Marcos Oswaldo Portillo (Portillo), Cesar Arnold Portillo Del Cid (Del Cid) and Glenda Veronica Henriquez (Henriquez) for: (1) Intentional Interference With Contract; (2) Intentional Interference with Prospective Economic Advantage; (3) Trespass to Chattel; (4) Violation of Racketeering Influence and Corrupt Organization Act (RICO) (18 USC 1962(a)-(d)) and (5) Unfair Competition.

 

After meet and confer efforts failed to resolve the issues DNT had with the complaint, on 12/19/24, DNT filed and served the instant demurrer to the entire complaint and motion to strike which seeks to strike the prayers for punitive and/or exemplary damages in relation to the 1st, 2nd, 3rd and 4th causes of action and the prayers for attorney’s fees in relation to the 5th cause of action.  Plaintiff has opposed the demurrer and motion to strike and DNT has filed replies to the oppositions.

 

The Court notes that the caption of the demurrer indicates that it is made by DNT and Portillo.  (See Notice of Demurrer, p.1:12-14).  However, the body of the notice indicates that only DNT is the moving party.  (See Notice of Demurrer, p.2:3-4).  Since the argument addresses only DNT, the Court finds that DNT is the only moving party on the demurrer. 

 

ANALYSIS

 

Demurrer

 

A demurrer may be based on the grounds that a complaint does not state sufficient facts to constitute a cause of action and/or is uncertain, among other grounds.  See CCP 430.10(e), (f).

 

Contrary to the assertion in the demurrer, the complaint sufficiently alleges how the defendants, including DNT, interfered with Plaintiff’s contracts and prospective economic advantages and how DNT trespassed against Plaintiff’s personal property.  The complaint alleges that the individual defendants, Portillo, Del Cid and Henriquez, were and are now officers, directors and shareholders of DNT who acted in such capacity when they, along with unidentified employees of DNT, allegedly interfered with Plaintiff’s contracts and prospective economic relationships, removed Plaintiffs signs, etc.  (See Complaint ¶¶3, 6, 9, 10, 11, 12, 19, 24, 29, 34).  As such, DNT’s argument that the complaint fails for uncertainty is without merit. 

 

1st cause of action – Intentional Interference with Contract

 

The elements of an intentional interference with contract cause of action are: (1) a valid contract between plaintiff and a third party, (2) defendant’s knowledge of such contract, (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship and (5) resulting damage.  Pacific Gas & Electric Co. (1990) 50 C3d 1118, 1126.

 

The complaint sufficiently alleges valid contracts existed between Plaintiff and third parties, DNT’s knowledge of such contracts, DNT’s intentional acts committed by Portillo, Cel Cid, Henriquez and other employees designed to induce breach or disruption of the contractual relationships, actual breach of disruption and resulting damage.  (See Complaint ¶¶9-16).

 

2nd cause of action – Intentional Interference with Prospective Economic Advantage

 

The elements of a cause of action for intentional interference with prospective economic advantage are: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.  Roy Allan Slurry Seal, Inc. (2017) 2 C5th 505, 512. 

 

Contrary to DNT’s assertion in the demurrer, Plaintiff has alleged sufficient facts to support the elements of the cause of action allegedly committed by DNT’s officers, directors, shareholders and employees.  (See Complaint ¶¶9-11, 19-20).

 

3rd – cause of action – Trespass to Chattels

 

To recover for trespass to chattels, the defendant’s interference with the plaintiff’s personal property must have caused some injury to the chattel or to the plaintiff’s rights in it.  Jamgotchian (2009) 170 CA4th 1384, 1400-1401.

 

Contrary to DNT’s assertion, the complaint sufficiently alleges how DNT trespassed against Plaintiff’s personal property through the actions of its officers, directors, shareholders and employees and how such conduct caused damage to Plaintiff (i.e., DNT removed Plaintiff’s signs which caused Plaintiff injury by losing and/or interfering with its business).  (See Complaint ¶¶9.B, 10-11, 24-25).

 

4th cause of action – Violation of Racketeering Influenced and Corrupt Organizations Act (RICO) (18 USC 1962(a)-(d))

 

The allegations in the complaint indicate that the RICO claim falls within the applicable 4 year statute of limitations as Plaintiff has alleged the underlying misconduct occurred between 2022 and 2024.  (See Complaint ¶¶10-11); Agency Holding 483 U.S. 143.  Additionally, DNT provides no authority to support its claim that this Court does not have jurisdiction over this cause of action.  Further, when the complaint is read as a whole, Plaintiff has alleged sufficient facts to support a finding of at least two predicate acts committed by DNT (through its officers, directors, shareholders, employees) within a 10-year period. 

 

5th cause of action – Unfair Competition (Business & Professions Code 17200)

 

Business and Professions Code 17200 allows for recovery for unfair competition which includes any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading, advertising.  Here, all of the allegations which precede this cause of action and which are incorporated therein are sufficient to state a claim for unfair competition. 

 

Motion to Strike

    

The conduct allegedly committed by and/or on behalf of DNT is sufficient to support a finding that DNT acted with fraud, oppression or malice as defined by Civil Code 3294 allowing for the recovery of punitive damages.  DNT cites no authority for the proposition that Plaintiff may not recover treble damages and punitive damages under the 4th cause of action

 

Contrary to Plaintiff’s assertion in the opposition to the motion to strike, DNT does not acknowledge Plaintiff’s right to attorney’s fees under Business & Professions Code 17200 under certain circumstances.  (See Opposition to Motion to Strike, p.4:3-5; Motion to Strike, generally).  Business and Professions Code 17200 does not provide for the recovery of attorney’s fees and Plaintiff has failed to cite any authority for its proposition that such fees may be recovered under Business and Professions Code 17200 in certain circumstances.  It has been held that the unfair competition law does not allow for the recovery of attorney’s fees, even if the action is based, in part, on the violation of another statute which allows for the recovery of such fees.  See People ex rel. City of Santa Monica v. Gabriel (2010) 186 CA4th 882, 889-891.

 

CONCLUSION

 

The demurrer is overruled. 

 

The motion to strike is denied as to the prayers for punitive and/or exemplary damages and granted as to the prayer for attorney’s fees in relation to the 5th cause of action (p.13:21).  Since it does not appear that the defect in the prayer for attorney’s fees in relation to the 5th cause of action can be cured by amendment, the motion to strike as to such prayer is granted without leave to amend. 

 

Answer is due within 30 days.