Judge: Robert C. Longstreth, Case: 37-2023-00010488-CU-BC-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 25, 2024

01/26/2024  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00010488-CU-BC-CTL THEATRE BOX SAN DIEGO LLC VS DAVIDOVICI [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/29/2023

Defendants' Demurrer to Plaintiffs' Complaint (ROA 20) is OVERRULED IN PART and SUSTAINED IN PART, with leave to amend the first, second, and third causes of action and alter ego allegations.

Plaintiffs failed to file a timely opposition. Although Defendants urge the court to disregard it, Defendants were able to prepare and file a reply. The court has exercised its discretion to consider it and finds no prejudice to any party in doing so.

As to the first and second causes of action, the demurrer is sustained with leave to amend. The sub-sublease and promissory note which form the basis of these claims and are attached to the pleading make clear that the contracting parties were Plaintiff Theatre Box San Diego LLC ('TBSD') and Defendant Sugar Factory San Diego, LLC ('SFSD'). Accordingly, these causes of action do not state facts sufficient to constitute a cause of action against Defendants Charissa Davidovici, Steve Davidovici, or Sugar Factory, LLC. Moreover, the Complaint does not sufficiently allege an alter ego theory against any of these Defendants.

As to the third cause of action, the demurrer is sustained with leave to amend. With regard to the guaranty, which is attached to the pleading, the contracting parties are Plaintiff 701 Fifth Avenue LLC and Defendant Sugar Factory, LLC. Accordingly, this cause of action does not state facts sufficient to constitute a cause of action against Defendants Charissa Davidovici, Steve Davidovici or SFSD. Again, the Complaint does not sufficiently allege an alter ego theory against any of these Defendants. Further, the claim asserts, inconsistent with the terms of the guaranty, that Sugar Factory LLC guaranteed TBSD's rental payments owed to 701 Fifth Avenue, not the rental payments SFSD owed to TBSD under the sub-sublease.

As to the fourth cause of action for conversion, fifth cause of action for waste, and sixth cause of action for equitable indemnity, the demurrer is overruled. These causes of action are stated sufficiently to survive demurrer.

Plaintiffs are to file a First Amended Complaint on or before February 16, 2024.

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