Judge: Michael P. Linfield, Case: 22STCV14150, Date: 2022-10-31 Tentative Ruling
Case Number: 22STCV14150 Hearing Date: October 31, 2022 Dept: 34
SUBJECT: Demurrer and Motion to Strike
Moving Party: Defendant Starline Tours of Hollywood, Inc.
Resp. Party: Plaintiff
Big Bus Tours Los Angeles, Inc.
Defendant Starline Tours
of Hollywood, Inc.’s Demurrer is SUSTAINED as to the Complaint’s third
of causation.
Defendant Starline Tours
of Hollywood, Inc.’s Motion to Strike is DENIED.
BACKGROUND:
(1) Unfair Competition
under UCL § 17200
(2) Common Law Unfair
Competition
(3) Intentional
Interference with Prospective Economic Advantage
(4) False Advertising
On September 26, 2022,
Defendant filed its Demurrer and its Motion to Strike. Defendant concurrently
filed its Proofs of Service and Declaration of Demurring or Moving Party
Regarding Meet and Confer.
On October 18, 2022,
Plaintiff filed its Opposition to the Demurrer and its Opposition to the Motion
to Strike.
On October 24, 2022,
Defendant filed its Reply to the Demurrer and its Reply to the Motion to
Strike. Defendant concurrently filed its Proof of Service.
ANALYSIS:
I.
Demurrer
A. Legal Standard for a Demurrer
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 Calif., 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.)
B.
Discussion
Defendant solely demurs to the third cause of action for
intentional interference with prospective economic advantage.
1.
Legal Standard
The elements of a claim for
intentional interference with prospective economic advantage include “(1) an
economic relationship between the plaintiff and some third party, with the
probability of future economic benefit to the plaintiff; (2) the defendant’s
knowledge of the relationship; (3) intentional or negligent acts on the part of
the defendant designed to disrupt the relationship; (4) actual disruption of
the relationship; and (5) economic harm to the plaintiff proximately caused by
the acts of the defendant.” (Crown
Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404,
citations, brackets, and quotation marks omitted.)
Further, “the alleged interference
must have been wrongful by some measure beyond the fact of the interference
itself. For an act to be sufficiently independently wrongful, it must be
unlawful, that is, it is proscribed by some constitutional, statutory,
regulatory, common law, or other determinable legal standard.” (Ibid.,
citation, ellipsis, and quotation marks omitted.)
2.
Analysis
Defendant argues that Plaintiff fails to state a claim for
intentional interference with prospective economic advantage. (Demurrer, p.
5:15–16.) According to Defendant, even if the facts in the Complaint were taken
as true, “the allegations fail to state a claim for intentional interference
with prospective economic advantage because [Plaintiff] does not allege that it
had an existing relationship with these customers that was reasonably probable
to yield economic benefits to [Plaintiff].” (Id. at p. 6:16–20.)
Defendant also notes that the parties met and confer on September 22, 2022
regarding the Demurrer. (Decl., p. 2.)
Plaintiff argues that it has stated a claim for intentional
interference with prospective economic advantage. (Opposition to Demurrer, p.
5:1–2.) Plaintiff points the Court to certain portions of the Complaint. (Id.
at 5:14–23; Complaint, ¶¶ 41, 43, 52, 60, 63.)
In Reply, Defendant argues that “[t]he first element of the
cause of action for this claim requires that the economic relationship alleged
have a probability of a future economic benefit to the plaintiff as opposed to
simply the possibility of a future economic benefit” but that Defendant
“alleges only a possible future economic benefit with members of the general
public.” (Reply, p. 2:14–18.) According to Defendant, “’[w]ithout allegations
that [Defendant] interfered with actual existing relationships with particular
customers, as opposed to the general public that want to take bus tours, there
is no economic relationship that [Defendant] has intentionally interfered with
that satisfy the first element of this claim.” (Id. at p. 3:4–7.)
The Court focuses on the first element of the cause of
action, as this is the thrust of Defendant’s argument in support of its
Demurrer.
Plaintiff began operations in Los Angeles in 2019.
(Complaint, ¶ 1.) In contrast, Defendant began operations in Los Angeles 80
years ago. (Id. at ¶ 2.) Both parties operate “hop-on, hop-off”
double-decker tourist routes in Los Angeles. (Id. at ¶¶ 1–2.) While the
Complaint cites “major tourist destinations” and “designated stops,” there is
no allegation in the Complaint about what the rest of the competition looks
like in this specific market, or to what extent the parties’ specific routes
are in actual competition. (Id. at ¶¶ 3–4.) The Complaint discusses how
the parties are “direct competitors” and that Defendant’s prices are “substantially
reduced” due to Defendant’s alleged “refusal to comply with [California Air
Resources Board]” regulations. (Id. at ¶ 39.) However, there are
insufficient further facts to understand what “direct competitors” means in
this context. Los Angeles is the second largest city in the country by
population, and it has a sprawling geography. Without further factual
allegations, the Court agrees with Defendant’s argument that at this point
Plaintiff’s Complaint only describes the “possibility” of future economic benefit
based on an economic relationship between Plaintiff and some third party rather
than the “probability” of such a future economic benefit.
The Court finds that the first element for the third cause of
action is not sufficiently pleaded in the Complaint.
The Court SUSTAINS the Demurrer as to Complaint’s third cause
of action for intentional interference with prospective economic advantage.
II.
Motion to Strike
A.
Legal Standard for a Motion to Strike
Any
party, within the time allowed to respond to a pleading, may serve and file a
notice of motion to strike the whole or any part thereof. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall 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. (California Rules of
Court Rule 3.1322.)¿
The
grounds for a motion to strike shall appear on the face of the challenged pleading
or form any matter of which the court is required to take judicial notice.
(Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant,
false, or improper matter inserted in any pleading and strike out all or any
part of any pleading not drawn or filed in conformity with the laws of this
state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When
the defect which justifies striking a complaint is capable of cure, the court
should allow leave to amend. (Perlman v. Municipal Court (1979) 99
Cal.App.3d 568, 575.)¿
B.
Discussion
Defendant moves the Court to strike from the Complaint
references to information found in websites that are irrelevant and improper.
(Motion to Strike, p. 7: 20–21.) Specifically, Defendant argues that “Plaintiff
vaguely references and appears to be incorporating the entirety of information
found in websites cited in footnotes but fails to set forth the language found
in the websites it intends to be included in the pleading. . . . Where language
from these websites is not set forth on the face of the Complaint, it is
impossible for [Defendant] to know what is being plead and test the sufficiency
of the Complaint within its four corners.” (Id. at pp. 7:22–24, 7:27–28,
8:1.)
Plaintiff argues that the citations to websites are relevant
and proper. (Opposition to Motion to Strike, p. 4:9.) Plaintiff argues that the
citations are “operating only to direct the reader to the source of an
allegation” and that Defendant “also seeks to strike [certain] allegations that
are not website links.” (Id. at pp. 4:26, 5:8–9.)
Defendant reiterates its arguments in its Reply.
The Court does not find that the citations are irrelevant or
improper. Nearly all of the citations at issue are website links to the California
Air Quality Board’s public website (ww2.arb.ca.gov.). The other citation is to
a link affiliated with University of California Berkeley. It is very likely
that much, if not all, of this information would be judicially noticeable.
Moreover, it all does appear that the information cited does relate to the
issues and causes of action discussed in the Complaint. While this citation
format, lack of request for judicial notice, and lack of providing the Court
with documentation of what was said on specific times and dates on the websites
may not be appropriate at later stages of the proceedings, it is acceptable in
a complaint when considering a demurrer as the Court must assume the truth of
what is pleaded. Furthermore, the other items that are not website links are
clearly not improper or irrelevant.
The Court DENIES Defendant’s Motion to Strike.
III.
Conclusion
Defendant Starline Tours
of Hollywood, Inc.’s Demurrer is SUSTAINED as to the Complaint’s third
of causation.
Defendant Starline Tours
of Hollywood, Inc.’s Motion to Strike is DENIED.