Judge: Ronald F. Frazier, Case: 37-2021-00012695-CU-PO-CTL, Date: 2023-08-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 03, 2023

08/04/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Ronald F. Frazier

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2021-00012695-CU-PO-CTL THURSTON VS MARRIOTT INTERNATIONAL INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 12/06/2022

Defendant Marriott International, Inc.'s Demurrer to Plaintiff's First Amended Complaint is SUSTAINED with leave to amend as to the second cause of action only. (ROA 68.) Plaintiff's allegations of fraud remain conclusory in nature and lack specific facts. Plaintiff's allegations of conduct by 'front desk personnel, motel management, and housekeeping staff' and that Defendant ratified or authorized the conduct are not sufficient. Since the defect in this claim is the lack of specificity, the court will allow Plaintiff one further opportunity to amend this claim.

Plaintiff may file and serve a Second Amended Complaint on or before September 8, 2023. Leave to amend is granted only as to the second cause of action for fraudulent inducement.

Defendant's Motion to Strike Portions of Plaintiff's First Amended Complaint is GRANTED and paragraph 63 of the pleading is ordered stricken. (ROA 69.) Plaintiff did not have leave to amend her second cause of action to add a claim for punitive damages.

Thus, her addition of this claim in her amended pleading improperly exceeded the scope of the court's October 17, 2022 order.

However, this ruling is without prejudice for Plaintiff to seek leave of court to amend her pleadings to state a punitive damages claim.

The court notes Defendant cites Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 832 for Defendant's assertion that 'long standing precedent in California that claims of negligence rarely, if ever, support imposition of punitive damages.' (Reply at 5:19-20.) However, the citation is to a dissent from the majority opinion in Egan, not to the majority opinion. Dissenting opinions are not legal precedent, and Defendant's counsel is admonished to ensure their legal citations properly identify to the court that a dissenting opinion is being cited in all future briefing.

Defendant's requests for judicial notice of Plaintiff's discovery responses are denied. (Def. RJN, Exh. C, D, E.) 'The court will take judicial notice of... answers to interrogatories... when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleadings before the court.' (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605, emphasis added.) The cited interrogatory responses do not meet this requirement. 'The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was Calendar No.: Event ID:  TENTATIVE RULINGS

2913300  6 CASE NUMBER: CASE TITLE:  THURSTON VS MARRIOTT INTERNATIONAL INC [IMAGED]  37-2021-00012695-CU-PO-CTL filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.' (Id. at p. 605.) Defendant's request for judicial notice of the court's October 17, 2022 minute order is granted. (Def.

RJN, Exh. F.) Calendar No.: Event ID:  TENTATIVE RULINGS

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