Judge: Robert P. Dahlquist, Case: 37-2023-00011417-CU-MC-NC, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 16, 2023

11/17/2023  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  Misc Complaints - Other Demurrer / Motion to Strike 37-2023-00011417-CU-MC-NC DEL DIOS PROPERTY TRUST VS. KILWEIN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 10/03/2023

Defendants Diane Kilwein and Tim Kasten's demurrer (ROA # 81) to the first amended complaint is sustained in part and overruled in part. Defendants' motion to strike (ROA # 84) is denied. Defendants shall file an answer by December 1, 2023.

The demurrer is sustained without leave to amend as to the claims brought by plaintiff Del Dios Property Trust. A trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue, be sued or defend an action. Any litigation must be maintained by, or against, the executor, administrator or trustee of the estate. Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344.

The demurrer to the first (nuisance), second (harassment), third (intentional infliction of emotional distress) and fourth (civil conspiracy) causes of action is overruled. At this stage of the case, the court is required to liberally construe the allegations of the first amended complaint, with a view to substantial justice between the parties. CCP § 452. The court should sustain a demurrer only if the facts alleged in the amended complaint, liberally construed, are insufficient to constitute any cognizable cause of action.

The court is not persuaded that this standard is satisfied here with regard to these claims brought by plaintiff Lara Bagby. FAC (ROA # 61), ¶¶ 13-16, 18-70, 78 and 87-95.

The demurrer to the fifth and sixth causes of action is overruled because the underlying nuisance and harassment claims provide a basis for injunctive relief. See Dep't of Fair Emp. & Hous. v. Superior Ct. of Kern Cnty. (2020) 54 Cal. App. 5th 356, 384–85.

The motion to strike the allegations of the FAC at ¶¶ 30-35, 37-38, 48-55, 69, 71 and the request for punitive damages is denied. The court finds that the plaintiff's allegations are sufficient at this stage of the case to permit a request for punitive damages as to the nuisance and harassment causes of action.

Of course, the issues presented by the demurrer and motion to strike may be revisited in the future when a more complete factual record is developed.

The court reminds plaintiff that all motion papers must be filed and served in accordance with the deadlines contained in the Code of Civil Procedure. In this instance, the court has elected to consider the late-filed opposition papers. In the future, the court may elect to disregard any late-filed papers.

Also, plaintiff needs to ensure that any papers filed with the court are simultaneously served on defendants' counsel. The court may elect to disregard any papers not properly served.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, Calendar No.: Event ID:  TENTATIVE RULINGS

3030487 CASE NUMBER: CASE TITLE:  DEL DIOS PROPERTY TRUST VS. KILWEIN [IMAGED]  37-2023-00011417-CU-MC-NC November 17, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 17, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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3030487