Judge: Michael P. Linfield, Case: 20STCV46551, Date: 2023-08-10 Tentative Ruling

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Case Number: 20STCV46551    Hearing Date: October 12, 2023    Dept: 34

SUBJECT:        Demurrer to Plaintiffs’ Second Amended Complaint

Moving Party: Defendant Eddie Navarrette

Resp. Party:    Plaintiffs Spaciot, LLC and Alessandro Paciotti

The Demurrer is SUSTAINED with leave to amend. Any amended complaint to be filed within 10 days.

BACKGROUND:

On December 4, 2020, Plaintiffs Spaciot, LLC and Alessandro Paciotti filed their Verified Complaint against Defendants Duc Pham; Vincent Pham; Verona Street Holdings, LLC; Barry Mason Enterprises, LP; Atlas Real Estate Group; Ali Mourad; Roger Merians; and Daniel Hinman.

On October 19, 2022, Plaintiffs filed their First Amended Complaint (FAC).

On November 18, 2023, Defendant Daniel Hinman filed his Answer to the FAC.

On January 6, 2023, Defendants Duc Pham, Vincent Pham, and Verona Street Holdings, LLC filed their Answer to the FAC.

On January 25, 2023, by request of Plaintiffs, the Clerk’s Office dismissed without prejudice Defendant Barry Mason Enterprises, LP from the Complaint.

On June 13, 2023, Plaintiffs amended their Complaint by substituting Doe 1 with Eddie Navarette.

        On August 9, 2023, Plaintiffs filed their Second Amended Complaint (SAC).

        On September 12, 2023, Defendants Atlas Real Estate Group, Ali Mourad, and Roger Merian filed their Answer to the SAC.

        On September 13, 2023, Defendant Eddie Navarrette (“Defendant”) filed his Demurrer to Plaintiffs’ SAC (“Demurrer”). In support of his Demurrer, Defendant concurrently filed his Request for Judicial Notice.

        On September 29, 2023, Plaintiffs filed their Response to the Demurrer (“Response”). Plaintiffs concurrently filed their Proof of Electronic Service.

        On October 5, 2023, Defendant filed his Reply regarding the Demurrer.

ANALYSIS:

I.          Request for Judicial Notice

Defendant requests that the Court take judicial notice of Exhibit C to the FAC, which is a contract.

        The Court DENIES judicial notice of this item. This is not something of which the Court may take judicial notice.

II.       Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

III.     Discussion

Defendant demurs to the SAC, arguing: (1) that Plaintiffs have not made sufficiently specific allegations against Defendant; and (2) that the third cause of action for intentional misrepresentation fails. (Demurrer, pp. 5:22–23, 6:4–6, 6:19–21, 7:19–21, 8:8–9.)

A.      Lack of Specificity

1.      Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

. . .

“(e)¿The pleading does not state facts sufficient to constitute a cause of action.

“(f)¿The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”

(Code Civ. Proc., 430.10, subds. (e)–(f).)

2.      Discussion

Defendant demurs to the SAC, arguing that Plaintiffs have not made sufficiently specific allegations against Defendant. (Demurrer, p. 5:22–23.)

Plaintiff opposes the Demurrer, arguing: (1) that the Demurrer was untimely; (2) that Plaintiffs amended their FAC in the exact fashion that the Court ruled would cure the defects in the prior pleading; (3) that Defendant is named as a co-conspirator and therefore it need not be alleged or proven that he personally committed every act comprising the intentional tort of misrepresentation; (4) that Defendant not being a signatory to the contract does not shield him from allegations of intentional misrepresentation; (5) that Defendant is named as a co-conspirator and thus Plaintiffs do not need to allege or prove that he personally committed every act comprising intentional misrepresentation; and (6) that the allegations against Defendant regarding his involvement in the alleged conspiracy are sufficient and well pleaded. (Response, pp. 3:2, 3:13–14, 5:10–12, 6:19–22, 8:7–9, 8:19–20.)

In his Reply, Defendant argues: (1) that he timely served his Demurrer and Plaintiffs did not suffer prejudice from a glitch in filing; (2) that the Court allowing leave to amend did not render Plaintiffs’ amendments immune to attack via Demurrer; (3) that the Court should disregard Plaintiffs’ conclusory allegations of conspiracy; (4) that the lease addendum does not contain an exculpatory clause; and (5) that the Court should sustain the Demurrer without leave to amend. (Reply, pp. 3:2–3, 3:11–12, 3:19–20, 5:1, 5:25–26.)

        It is irrelevant whether Defendant was untimely in filing the Demurrer. Even if he were, Defendant could have simply filed a motion for judgment on the pleadings to the same effect. The Court agrees with the argument that Plaintiffs were not prejudiced by an untimely filing.

        Further, the Court agrees with the argument that the SAC fails to state facts sufficient to constitute a cause of action as to Defendant. Indeed, the SAC is nearly identical to the FAC. From what the Court can tell, the only changes are to paragraphs 10 and 40 — and both changes do not add allegations that would clarify why any of the causes of action involve Defendant. For example, Paragraph 10 adds an allegation that each Doe Defendant “was the agent, principal, alter-ego, coconspirator [sic], and/or successor-in-interest of the named Defendants . . . and are responsible in some way for the acts complained of therein.” (SAC, ¶ 10.) But there is a complete lack of specificity as to how the Doe Defendants are responsible, much less any new allegation that would explain why the causes of action are sufficient as to Defendant.

While it would not alone be dispositive, it is notable that neither Defendant’s name (Eddie Navarrette) nor the name he uses, “Fast Eddie,” appear a single time in the SAC. Defendant is still not a named defendant in the SAC but instead remains a Doe defendant. It is also notable that the language in the SAC continues to state that Plaintiffs “are unaware of the true names . . . of Defendant DOES 1 to 25” — even though on June 13, 2023, Plaintiffs substituted Doe 1 with Defendant. (SAC, ¶ 10.)

        The insufficient allegations made in the FAC remain insufficient in the SAC. At the hearing, Plaintiff stated that paragraph 40 of the complaint was sufficient to allege a conspiracy.  The Court disagrees.  However, Plaintiff stated at the hearing that he could add the required information and requested leave to amend.

B.      Intentional Misrepresentation

        The Court need not, and does not, reach specific arguments about intentional misrepresentation.

IV.      Conclusion

The Demurrer is SUSTAINED with leave to amend.