Judge: Robert P. Dahlquist, Case: 37-2023-00013249-CU-BC-NC, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 18, 2024

01/19/2024  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00013249-CU-BC-NC RYAN VS. SOLAR 360 BUILDING SERVICES, INC. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/06/2023

Defendant Solar 360 Building Services, Inc.'s motion to strike the third amended complaint is granted, with leave to amend. The demurrer is moot in light of the striking of the third amended complaint.

On August 11, 2023, plaintiff Lisa Ryan filed a third amended complaint without a stipulation or leave of court as required by CCP § 472. As such, the court will strike the third amended complaint.

Notwithstanding the striking of the third amended complaint, the court will address some of the other issues raised by the demurrer and motion to strike in an effort to provide some guidance to the parties.

Some of the points raised by defendant are well-taken. For example, the third amended complaint does not include a copy of the contract at issue nor does plaintiff plead the terms of the contract purportedly breached by defendant in haec verba or according to the legal effect. Further, plaintiff has failed to sufficiently allege facts supporting a request for punitive damages against the corporate defendant as required by Civil Code § 3294(b). Civil Code § 3294(b) ['With respect to a corporate employer, the advanced knowledge and conscious disregard, authorization, ratification or an act of oppression, fraud or malice must be on the part of an officer, director or a managing agent of a corporation.'].

On the other hand, plaintiff is permitted to pursue alternative theories of liability at this stage of the case (breach of the covenant of good faith and fair dealing, nuisance and rescission). See Adams v. Paul (1995) 11 Cal.4th 583, 593 ['a party may plead in the alternative and may make inconsistent allegations'] and Williams v. Marshall (1951) 37 Cal.2d 445, 457 [although plaintiff cannot obtain both rescission and damages for the same wrong, it is well-settled that she can seek each in the alternative].

The court will give plaintiff an opportunity to amend her complaint. The court invites plaintiff's counsel to carefully review the demurrer and motion to strike so that potential deficiencies with the complaint may be addressed without further motions. Plaintiff may file and serve an amended complaint by no later than January 31, 2024.

This minute order constitutes the court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, January 19, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 19, 2024. 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.

Calendar No.: Event ID:  TENTATIVE RULINGS

3033473 CASE NUMBER: CASE TITLE:  RYAN VS. SOLAR 360 BUILDING SERVICES, INC. [IMAGED]  37-2023-00013249-CU-BC-NC Calendar No.: Event ID:  TENTATIVE RULINGS

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