Judge: Michael D. Washington, Case: 37-2023-00054306-CU-PO-NC, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - June 13, 2024

06/14/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00054306-CU-PO-NC THIBAULT V. TENDER LOVING MERCY, INC. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/01/2024

The Demurrer to First Amended Complaint brought by defendants TLM Sober Living House and Timothy McMahan (collectively, Defendants) is OVERRULED. The Motion to Strike Portions of First Amended Complaint brought by Defendants is DENIED. The time to answer or otherwise respond shall be as set forth in California Rules of Court, rule 3.1320.

The law requires that allegations of fraud be pled with specificity. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2024) § 6:138, citing Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 (superseded by statute on other grounds), also citing Small v. Fritz Cos., Inc. (2003) 30 Cal.4th 167, 183, also citing Glaski v. Bank of America, N.A. (2013) 218 Cal.App.4th 1079, 1090.) Plaintiffs Sherry Thibault and Duane Wittmeier (collectively, Plaintiffs) have alleged that defendant Timothy McMahan is the Chief Executive Officer of TLM Sober Living House, which is the subsidiary of defendant Tender Loving Mercy Inc. (the CEO). They further allege that the CEO represented to them that 'there were no illegal drugs at Tender Loving Mercy,' that the house staff performed 'constant monitoring,' and that 'people in the house never go unsupervised.' They further allege that their son died due to a drug overdose while in the care of the sober living house. As such, Plaintiffs allege that they were lied to to induce them into placing their son in the care of the sober living house.

To be clear, there are a number of issues discussed in the briefing that might suggest that there are defenses to the fraud claim. It is suggested that the sober living was the only alternative available to the son if he wanted to avoid jail. It also seems to be suggested that these representations might amount to some sort of puffery in the selling of the sober living services. The Court cannot, at present, examine the substance and facts of what occurred. On demurrer, and on motion to strike, a trial court must indulge the allegations as made, and Plaintiffs have alleged enough to indicate that untrue representations were made to them by someone high enough at the sober living house – indeed, the alleged Chief Executive Officer – that they relied on when deciding to purchase the sober living services.

As to the claim for violation of the Consumer Legal Remedies Act (CLRA), the elements of the claim are set forth in CACI No. 1770. The key element at issue in the briefing is the second: 'That [name of defendant] [specify one or more prohibited practices from Civ. Code § 1770(a), e.g., represented that [product or service] had characteristics, uses, or benefits that it did not have]...' (CACI No. 1770.) Civil Code § 1770 enumerates a list of 'unfair methods of competition and unfair or deceptive acts or practices...,' and the fifth of these is: 'Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has a Calendar No.: Event ID:  TENTATIVE RULINGS

3096774 CASE NUMBER: CASE TITLE:  THIBAULT V. TENDER LOVING MERCY, INC. [IMAGED]  37-2023-00054306-CU-PO-NC sponsorship, approval, status, affiliation, or connection that the person does not have.' (Italics added.) It is the word 'characteristics' that Plaintiffs focus on for purposes of the instant allegations. They claim that, as with their fraud allegations, the CEO's lies were about the 'characteristics' of the sober living business he was running. Being enough to support a claim for fraud, the Court finds that the allegations are sufficient to support a claim for violation of the CLRA.

Finally, as to the Motion to Strike, though the briefing discusses malice and oppression (both of which are independent grounds for obtaining punitive damages – see Civil Code § 3294), the key issue is fraud, as fraud alone can support a claim for punitive damages. (Civil Code § 3294.) As set forth above, Plaintiffs' allegations are sufficient to support a claim of fraud, and, therefore, they likewise support a claim for punitive damages at this early juncture.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

Calendar No.: Event ID:  TENTATIVE RULINGS

3096774