Judge: Monica Bachner, Case: 21STCV30585, Date: 2022-10-14 Tentative Ruling

Case Number: 21STCV30585    Hearing Date: October 14, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants JV General Construction Inc.’s and Jaime Villalvazo’s demurrer to the first amended complaint is overruled as to the 1st, 4th, 8th, and 17th causes of action.

Defendants’ motion to strike is granted, in part, with leave to amend within 10 days, and denied, in part.

A.   Demurrer

Defendants JV General Construction, Inc. (“JV Construction”) and Jaime Villalvazo (“Villalvazo”) (collectively, “Defendants”) demur to the 1st (discrimination in violation of Government Code §12940(a)), 4th (failure to prevent discrimination in violation of Government Code §12940(k)), 8th (Intentional Infliction of Emotional Distress (IIED)), and 17th (negligent hiring, training, retention, or supervision) causes of action in the first amended complaint (“FAC”) of Plaintiff Luisa Maldonado (“Maldonado”) (“Plaintiff”).  Defendants argue Plaintiff’s FAC fails to allege sufficient facts to constitute the causes of action; asserts improper, blanket references and factually unsupported, conclusory requests for punitive damages and attorneys’ fees; contains improper, irrelevant, and false allegations regarding ownership and control of the subject premises and in the 8th cause of action; and contains no legal basis for damages requests.  (Notice of Demurrer, pg. 5.) 

          Background and Procedural Issues

          On August 18, 2021, Plaintiff filed her initial complaint against Defendants S&W Atlas Iron & Metal Co., Inc. (“S&W Atlas”), JV Construction, Villalvazo, Gary Weisenberg (“Gary”), Matthew Weisenberg (“Matthew”), Candido De Jesus Reyes (“De Jesus Reyes”), and William Doe aka Chilly (“Chilly”). On February 17, 2022, Plaintiff filed her operative first amended complaint (“FAC”) alleging seventeen causes of action: (1) discrimination in violation of Government Code §12940(a); (2) denial of reasonable accommodation in violation of Government Code §12940(m); (3) failure to engage interactive process in violation of Government Code §12940(n); (4) failure to prevent discrimination in violation of Government Code §12940(k); (5) retaliation for engaging in protected activity in violation of Government Code §12940(h); (6) wrongful termination in violation of public policy; (7) retaliation in violation of Labor Code §1102.5; (8) IIED; (9) unfair business practices in violation of California Business and Professional Code §17200; (10) sexual battery; (11) battery; (12) gender violence in violation of California Civil Code §52.4; (13) Ralph Civil Right Act (violation of California Civil Code §51.7); (14) interference with exercise of civil rights (California Civil Code §52.1); (15) negligent premises liability; (16) violations of labor code §6311; and (17) negligent hiring, supervision, or retention of employee. 

Defendants filed the instant demurrer on March 22, 2022.  The Court notes Plaintiff’s opposition to the demurrer was untimely filed and served pursuant to C.C.P. §1005(b).  Plaintiff’s opposition was due September 15, 2022, nine court days before this hearing, and was filed September 19, 2022.  The Court will consider Plaintiff’s opposition to the demurrer in its discretion.  Defendants also filed their motion to strike on March 22, 2022.  Plaintiff’s opposition to the motion to strike was not filed with the Court, but was served on Defendants, as noted in Defendants’ reply, filed on September 21, 2022.  This Court ordered Plaintiff’s opposition to the motion to strike filed within 24 hours of its 9/29/2022 Minute Order. Plaintiff filed her opposition to the motion on September 29, 2022.

          The instant action involves Plaintiff’s employment as a cashier for S&W Atlas, a scrapyard in Los Angeles.  (FAC ¶¶1, 32, 38.)  Plaintiff alleges JV Construction is a construction company based in Los Angeles owned by Villalvazo, the CEO, employee, and licensed contractor.  (FAC ¶¶ 33, 35.)  Plaintiff alleges JV Construction and Villalvazo are the employers of Chilly and De Jesus Reyes, with De Jesus Reyes unlawfully misclassified by JV Construction and Villalvazo as an independent contractor.  (FAC ¶¶34, 36.)  Plaintiff also alleges Chilly is/was an employee of S&W Atlas.  (FAC ¶9.)  Plaintiff alleges prior to May 2021, she began to experience sexual harassment from Defendant Chilly and immediately reported the sexual harassment to her supervisor, Matthew.  (FAC ¶39.)  Plaintiff alleges Chilly would grab her hands, arms, back, shoulders, and buttocks, and would persistently invade her workstation, pressing himself against her until she had to physically shove Chilly away while she was performing her job duties; Chilly would frequently follow Plaintiff into her office for the sole purpose of harassing her.   (FAC ¶¶40-41.)  Plaintiff alleges Gary, Matthew, and S&W Atlas individually and collectively failed to take any action to remedy Chilly’s sexual harassment of Plaintiff, which Plaintiff alleges they witnessed or were made aware of by Plaintiff and other co-workers.  (FAC ¶42.)  Plaintiff further alleges that on or around July 23, 2021, De Jesus Reyes followed Plaintiff to her car and asked Plaintiff if she would like a piece of her sandwich, reached inside Plaintiff’s car window, and then grabbed Plaintiff’s breast and twisted her nipple.  (FAC ¶46.)  Plaintiff alleges she pushed De Jesus Reyes’s hands away from her body, rolled up her window, and reported the incident to Defendants at the end of the day.  (FAC ¶¶47-48.)  Plaintiff alleges Gary, Matthew, JV Construction, and Villalvazo all failed to make any report of the incident, take action to prevent its recurrence, or address the situation in any way. (FAC ¶50.)  Plaintiff alleges the sexual assaults by Chilly and De Jesus Reyes caused Plaintiff extreme distress, inability to sleep, and inability to return to work.  (FAC ¶52.) On or around July 26, 2021, Plaintiff returned to work and reported the extreme distress she was experiencing; Gary and/or Matthew allegedly told Plaintiff “If you don’t feel ok to work, then you shouldn’t work here,” and mailed Plaintiff her final check on or around August 2, 2021.  (FAC ¶¶51, 54.)  Matthew allegedly texted Plaintiff to inform her that if she did not sign a letter of voluntary resignation, that he would put a stop to payment on her final check in retaliation for reporting the sexual harassment.  (FAC ¶55.)

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law.  (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Violations of Government Code §§12940(a), (k) (1st and 4th COAs)

A plaintiff alleging discrimination must allege “that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position he sought or was performing competently in the position he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

The elements of a cause of action for failure to prevent harassment or discrimination are: (1) actionable discrimination or harassment by employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff (i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e., failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)

Plaintiff’s §§12940(a),(k) causes of action are based on the following allegations: (1) Plaintiff was a member of a protected category based on her gender or sex; (2) Defendants aided, abetted, and subjected Plaintiff to discrimination and harassment and knew conduct violated the anti-discrimination statute, and gave “substantial assistance or encouragement” to discriminate through substantial contribution; (3) Defendants, through their actions and/or inactions failed to provide and/or receive compliant anti-sexual harassment training, promoted and condoned a work environment in which sexual harassment, assault, and/or battery was known and/or tolerated, adopted De Jesus Reyes and Chilly’s sexual harassment, assault, and/or battery as their own in that Defendants continued to retain De Jesus Reyes and Chilly and have expressly or by implication adopted De Jesus Reyes’s and Chilly’s conduct as their own; (4) Plaintiff suffered from medical conditions that amounted to a disability under the statute during the scope of her employment; (5) Plaintiff repeatedly informed Defendants that she sustained work-related injuries that amounted to a statutorily protected disability and/or medical condition; (6) Plaintiff’s injuries and/or medical conditions were substantial motivating factors that S&W Atlas, Gary, and Matthew considered when deciding to terminate Plaintiff’s employment; (7) as a proximate result of Defendants’ willing, knowing, and intentional discrimination, Plaintiff sustained and continues to sustain substantial losses including losses in earnings and other employment benefits, the intangible loss of employment-related opportunities for grown in Plaintiff’s field, and damage to her professional reputation and continues to suffer anxiety, worry, embarrassment, humiliation, mental anguish, and emotional distress, which has and will continue to incur medical expenses.  (FAC ¶¶75-89, 110-124.)

For the purposes of a demurrer, Plaintiff has alleged sufficient facts to support her Violations of Government Code §§12940(a), (k) causes of action as to JV Construction and Villalvazo. Defendants argue the FAC alleges no facts against JV Construction and Villalvazo and only makes factual allegations against S&W Atlas, even though the FAC alleges the 1st and 4th causes of action against “All Defendants.” (Reply, pgs. 3-4.)  The FAC alleges JV Construction’s and Villalvazo’s failure to provide statutorily mandated anti-sexual harassment training under Government Code §12950.1 to De Jesus Reyes and their promotion of a work environment where sexual harassment and/or sexual battery was known and/or tolerated renders them liable for “aiding and abetting discrimination and harassment.”  (FAC ¶¶78-79, 115-116.)  Accordingly, Plaintiff has sufficiently stated a cause of action for Violations of Government Code §§12940(a), (k) against JV Construction and Villalvazo.

Based on the foregoing, Defendants’ demurrers to the 1st and 4th causes of action are overruled.

IIED (8th COA)

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Plaintiff’s 8th cause of action is based on the following allegations: (1) she was subject to repeated or severe acts of harassment by Defendants due to her sex, gender, sexual harassment, disability and/or medical condition; (2) she was subjected to repeated acts of retaliation by Defendants because she complained about the harassment and discrimination she alleges in the FAC; (3) Defendants’ extreme and outrageous conduct is imputed onto Defendants’ actions and/or inactions which amount to ratification because they were/are principals, agents, and/or managing/supervising agents; (4) she was subjected to work in a hostile work environment under the supervision of Defendants because they failed to take any action to address, prevent, investigate, protect Plaintiff’s sexual harassment, sexual battery, sexual assault by their own employee, contractor, vendor, or agents, Chilly and De Jesus Reyes, and ratified said actions by allowing, providing substantial assistance, encouragement to discriminated, harassment, retaliation suffered by Plaintiff against due to her sex, gender, sexual harassment, disability and/or medical condition, to specifically harm her based on said protected categories; (5) Defendants knowingly actually, constructively terminated, or substantially contributed or caused Plaintiff to forcibly quit her employment after she complained of Chilly and De Jesus Reyes’s, repeated or severe harassment and discrimination; (6) Defendants knowingly and specifically ignored Plaintiff’s complaints that she was sexually harassed and discriminated and retaliated against Plaintiff based on her sex, gender, sexual harassment, disability and/or medical condition; (7) Defendants ratified these violations when they terminated Plaintiff, in violation of Labor Code § 1102.5; (8) as a proximate result of Defendants’ conduct, Plaintiff suffers from severe emotional distress including embarrassment, humiliation, disappointment anxiety, and anger; (9) Defendants’ acts and omissions were extreme and outrageous and were undertaken in a despicable oppressive, fraudulent, deliberate, egregious and inexcusable manner, with malice and oppression as defined by Civil Code § 3294; (10) Defendants knew or should have known that their conduct would result in Plaintiff’s severe emotional distress, and Defendants’ acts and omission were perpetrated with the intent to inflict and/or with reckless disregard for the probability of inflicting humiliation, mental anguish and severe emotional distress on Plaintiff; (11) Plaintiff has been harmed in that she has suffered actual, consequential and incidental financial losses, including without limitations loss of salary and benefits, and the intangible loss of employment-related opportunities, medical benefits and other benefits, including retirement; (12) Plaintiff has suffered and continues to suffer anxiety, worry, embarrassment, humiliation, mental anguish, emotional distress, nervousness, sleeplessness, irritability, agitation, annoyance, fear, anger, frustration, hopelessness, despair, depression, and difficulty with concentration. (FAC ¶¶169-183.)

          For the purposes of a demurrer, Plaintiff alleges sufficient facts to support her allegations as to JV Construction and Villalvazo for IIED.  (FAC ¶169-183; Demurrer, pg. 7).  Defendants argue Plaintiff was never employed by JV Construction and Villalvazo are therefore could not have subjected Plaintiff to work “in a hostile work environment.”  (Demurrer, pg. 7.)  Plaintiff has sufficiently alleged vicarious liability for IIED because she established facts suggesting Chilly’s and De Jesus Reyes’s conduct was in the course of their employment and that JV Construction approved of Chilly’s and De Jesus Reyes’s conduct by omission.  (FAC ¶¶173, 177.)  Plaintiff sufficiently alleges she was subjected to work in a hostile work environment under the supervision of Defendants because she alleges they knowingly and specifically ignored her complaints that she was sexually harassed.  (FAC ¶¶172-174.)  Accordingly, Plaintiff has sufficiently stated a cause of action for IIED against JV Construction and Villalvazo.

Based on the foregoing, Defendants’ demurrer to the 8th cause of action is overruled.

Negligent hiring, training, retention, or supervision (17th COA)

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

For the purposes of a demurrer, Plaintiff has alleged sufficient facts to support her allegations as to JV Construction and Villalvazo for negligent hiring, training, retention, or supervision. (FAC ¶267-282; Reply, pg. 5). Defendants argue the FAC fails to allege JV Construction and Villalvazo knew of De Jesus Reyes’ propensity to engage in job-related sexual assault prior to hiring him. (Reply, pg. 5.) The FAC alleges JV Construction and Villalvazo knew or should have known De Jesus Reyes was unfit or incompetent because he was unlicensed, uninsured, lacked required training and expertise, lacked anti-sexual assault trainings, had prior complaints of sexually abusive conduct, and JV Construction and Villalvazo failed to perform a criminal background check on De Jesus Reyes prior to hiring.  (Complaint ¶¶272, 279; see Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.)  Here, Plaintiff sufficiently alleges JV Construction and Villalvazo knew of De Jesus Reyes’s prior complaints of sexually abusive conduct.  (Complaint ¶279.)  Accordingly, Plaintiff has sufficiently stated a cause of action for negligent hiring, retention, or supervision against JV Construction and Villalvazo.

Based on the foregoing, Defendants’ demurrer to the 17th cause of action is overruled.

B.   Motion to Strike

Defendants move to strike portions of the FAC.  Defendants move to strike the following paragraphs from of the FAC on the grounds they assert improper, irrelevant, and false allegations regarding Defendants’ premises liability and throughout the eighth cause of action for IIED, and assert factually unsupported, conclusory requests for punitive damages and attorneys’ fees: (1) 68; (2) 124; (3) 169; (4) 170; (5) 171; (6) 172; (7) 173; (8) 174; (9) 175; (10) 176, (11) 177; (12) 178; (13) 179; (14) 180; (15) 181; (16) 182; (17) 183; (18) 282; (19) Prayer ¶1; (20) Prayer ¶3; (21) Prayer ¶4; (22) Prayer ¶5; and (23) Prayer ¶6.  (Notice of Motion, pgs. 2-5.)

Meet and Confer

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (C.C.P. §435.5(a).)  However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike.  (Code Civ. Proc., § 435.5(a)(4).)

Defendants argue Plaintiff has not responded to Defendants’ meet and confer efforts regarding their liability for damages alleged in the FAC for Chilly’s and De Jesus Reyes’s conduct.  (Motion, pg. 5.)  Despite Plaintiff’s failure to meet and confer with Defendants, this Court will exercise its discretion to consider Defendants’ motion to strike.

Legal Standard

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or 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.” A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (C.C.P. §437.)  Conclusory allegations will not be stricken where they are supported by other, factual allegations in the complaint. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [“The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” (Citations.)].)

Premises Liability

Defendants argue Plaintiff’s allegations that Defendants negligently maintained, controlled, managed, and operated the subject premises are improper, false, and irrelevant.  (FAC ¶68.)  Defendants argue Plaintiff’s allegations are improper, false, and irrelevant because JV Construction and Villalvazo were under no such duty, as they were simply retained to perform work at the premises. (Motion pg. 6.)  Defendants argue the FAC alleges Defendants Gary Weisenberg, Matthew Weisenberg, and S&W Atlas owned, maintained, controlled, managed, and operated the subject premises.

Defendants are not entitled to a motion to strike FAC ¶68, as the allegations against JV Construction and Villalvazo regarding premises liability do not appear improper on the face of the pleading.  (C.C.P. §437.)

Actual, Statutory, and Restitutionary Damages

Civil Code §3281 provides, “[e]very person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”  Detriment is a loss or harm suffered in person or property. (Civ. Code §3282.)

Defendants argue the FAC’s prayer section includes requests for “all actual, consequential and incidental financial losses, including without limitation loss of salary and benefits, together with prejudgment interest, in an amount according to proof at trial” that should be stricken.  (Prayer ¶1.)  Defendants also argue the prayer section includes requests for compensatory, statutory, and restitutionary damages that should be stricken.  (Prayer ¶¶2, 3, 4.) Defendants argue the amount Plaintiff demands will be determined from both the prayer and the allegations of the FAC. (Motion pg. 6, citing National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417).

Defendants are not entitled to a motion to strike FAC Prayer ¶¶1, 2, 3, and 4.  Pursuant to Civil Code §§3281 and 3282, Plaintiff’s claims for damages are proper on the face of the pleading and supported by the causes of action pleaded.

IIED

Defendants argue Plaintiff’s eighth cause of action consists entirely of improper, irrelevant, and false matters that should be stricken because Plaintiff never worked for Defendants and therefore could not have subjected her to a hostile work environment.  (FAC ¶¶ 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183; Motion pgs. 7-8.) 

Defendants are not entitled to a motion to strike FAC ¶¶ 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, and 183, as the allegations against JV Construction and Villalvazo for IIED do not appear improper on the face of the pleading.  (C.C.P. §437.)

Punitive Damages

Civil Code §3294(a), governing punitive damages, provides: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code §3294(c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Id., §3294(c)(2).) “Fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., §3294(c)(3).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; accord Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17.)  Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Defendants argue Plaintiff’s request for punitive damages in her prayer section and throughout the FAC should be stricken because they are factually unsupported as to Defendants.  (FAC ¶¶89, 183, 282, Prayer ¶6.)  Defendants argue Plaintiff does not allege specific facts demonstrating Defendants are guilty of oppression, fraud, or malice, and are merely conclusory statements that Defendants’ conduct was “willful, wanton, and malicious.”  (Motion pgs. 8-9, citing Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64.)

Defendants are not entitled to a motion to strike Plaintiff’s requests for punitive damages because Plaintiff has pleaded the ultimate facts showing an entitlement to such relief, including Defendants’ advance knowledge of employee De Jesus Reyes’s unfitness for employment and Defendants’ disregard Plaintiff’s rights and her safety by employing De Jesus Reyes.  (FAC ¶¶272-273, 278-279, 280, 282.)

Attorneys’ Fees

Attorneys’ fees are not recoverable unless provided for by contract, statute, or law.  (Civ. Code §1033.5(a)(10); Bear Creek Planning Committee v. Ferwerda (2011) 193 Cal.App.4th 1178, 1185.)

Defendants move the Court to grant an order striking the Complaint’s matter for/in support of attorneys’ fees. (C.C.P. § 436.)  Defendants argue the FAC alleges Plaintiff is entitled to recover such attorneys’ fees and costs under Government Code §12965(b), which specifically applies to verified complaints. (FAC ¶124; Gov. Code §12965(b).)  Defendants argue the FAC is an unverified complaint, and as such, Plaintiff cannot seek attorney’s fees pursuant to the statute. (Motion pg. 10.)

The FAC is an unverified complaint and fails to cite to some statute or an agreement between the parties that specifically provides for attorney’s fees. (See generally FAC.) However, Plaintiff claims that she can remedy the FAC’s deficiencies through an amendment to the pleading.

Accordingly, the Motion to Strike is granted on these grounds with leave to amend within 10 days. (C.C.P. §436.)

Dated:  October _____, 2022

Hon. Monica Bachner

Judge of the Superior Court