Judge: Robert P. Dahlquist, Case: 37-2023-00026854-CU-BC-NC, Date: 2024-03-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 19, 2024

03/19/2024  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 37-2023-00026854-CU-BC-NC SHOWPROP MONROVIA II LLC VS FIRST AMERICAN TITLE INSURANCE COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 01/09/2024

Morgan Stanley Defendant Morgan Stanley's demurrer (ROA # 33) to the first amended complaint is overruled.

Defendant shall file an answer by April 5, 2024.

At this stage of the case, the court is required to liberally construe the allegations of the 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 complaint, liberally construed, are insufficient to constitute any cognizable cause of action. After careful review of the pleadings, arguments and authorities presented by the parties, the court believes that plaintiff Showprop Monrovia II, LLC has set forth sufficient facts constituting causes of action for negligent misrepresentation and promissory estoppel.

As the case progresses, Morgan Stanley may continue to assert these same arguments and defenses by way of other motions and at trial.

First American Title Insurance Company (FATIC) Defendant First American Title Insurance Company's demurrer (ROA # 29) to the first amended complaint is overruled. Defendant FATIC's motion to strike is granted in part and denied in part.

Defendant shall file an answer by April 5, 2024.

At this stage of the case, the court is required to liberally construe the allegations of the 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 complaint, liberally construed, are insufficient to constitute any cognizable cause of action. After careful review of the pleadings, arguments and authorities presented by the parties, the court believes that plaintiff Showprop Monrovia II, LLC has set forth sufficient facts constituting causes of action for breach of contract, breach of the implied covenant, breach of fiduciary duty and negligence.

As the case progresses, First American Title Insurance Company may continue to assert the arguments and defenses presented by this demurrer by way of motions and at trial.

Turning to the motion strike, First American moves to strike allegations concerning punitive damages and attorneys' fees.

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3101088 CASE NUMBER: CASE TITLE:  SHOWPROP MONROVIA II LLC VS FIRST AMERICAN TITLE  37-2023-00026854-CU-BC-NC The motion is denied with respect to the request for attorneys' fees. Plaintiff has alleged it is entitled to attorney fees 'as provided by Section 10 of that certain subject Borrower's Escrow Instructions, Section 7.04 of that certain subject Term Loan Agreement, and/or Section 38 of that certain subject Deed of Trust, Security Agreement Assignment of Leases and rents and Fixture Filing.' FAC (ROA # 24), Prayer, ¶ 14. The court is unable to determine, at this stage of the case and on this limited record, that plaintiff cannot recover attorney fees if it prevails in this matter. As the case progresses, First American may continue to assert that plaintiff is not allowed to recover attorney fees.

The motion is granted with respect to the request for punitive damages. The court finds that plaintiff's allegations are not sufficient to permit a request for punitive damages under CCP §§ 3294(c)(1), (c)(2) and (c)(3) (''Malice' means 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... 'Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights...'Fraud' means 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.'). Moreover, as to corporate defendants, plaintiff must allege that '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.' Civil Code § 3294(b).

Plaintiff may seek leave to amend in the future if facts are discovered to support a request for punitive damages against First American.

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 Tuesday, March 19, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 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.

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3101088