Judge Shirley K. Watkins, Case 22VECV00619 2023-01-23 Tentative Ruling

[TENTATIVE] ORDER: Defendant Arthur Page and Defendant Arthur Page Company LLC’s Demurrer to Cienega Spa, Inc and Rose’s Garden Bar LLC’s First Amended Complaint is OVERRULED. Answer shall be filed within 20 days.

Defendant Ronald H. Marshall’s Motion for Judgment on the Pleadings is DENIED.

Defendant Arthur Page (Page) and Defendant Arthur Page Company LLC (APC) (collectively, Page Defendants) demurred to Plaintiffs Cienega Spa, Inc. (CS) and Rose’s Garden Bar LLC’s (RGB) (collectively, Plaintiffs) First Amended Complaint (FAC). Page Defendants’ demurrer placed into issue Plaintiffs’ third cause of action (COA) for intentional misrepresentation and fourth COA for negligent misrepresentation.[1]

Defendant Ronald H. Marshall (Marshall) moved for judgment on the pleadings against Plaintiffs’ FAC. Marshall’s motion placed into issue Plaintiffs’ first COA for negligence, seventh COA for aiding and abetting, and eighth COA for violation of Business & Professions Code section 17200 (UCL.)

Plaintiffs argued that Marshall’s Motion for Judgment on the Pleadings was untimely filed and served. The motion was filed on January 4, 2023. The proof of service on the motion showed service by several methods (i.e., personal, U.S. Mail, and electronic transmission) effectuated on January 2, 2023. Filing and service was required to be completed 16 court days prior to the hearing (i.e., December 30, 2022.) Because filing and service by any of the three methods used by Marshall did not meet the 16-court day requirement for notice, the filing and service of the motion is untimely. However, the Court did not find any prejudice against Plaintiffs since Plaintiffs’ opposition addressed the merits of the motion. The Court exercised its discretion to review the motion on its merits.

Marshall’s motion attached a declaration from Co-Defendant Arthur Page and Marshall himself. As with a demurrer, the grounds for the motion for judgment on the pleadings must be based upon facts appearing on the face of the pleading or upon facts judicially noticeable. (Code Civ. Proc. sec. 438(d).) The facts within the declarations of Page and Marshall are not facts within the FAC nor are they facts judicially noticeable. Because the declarations are not permitted to be used in determining the motion, the Court did not consider the two declarations.

Replies by all moving Defendants were due January 13, 2023. Page Defendants’ reply to the demurrer was untimely filed on January 17, 2023 but the Court again exercised its discretion and reviewed it. Marshall did not file a reply in support of the motion for judgment on the pleadings.

Page Defendants’ reply to the demurrer added two new arguments not made in the moving demurrer. Page Defendants added an argument against the fraud-based claims asserting that the FAC failed to plead facts alleging “to whom” the misrepresentation was made. Page Defendants then asserted a completely new argument against the eighth COA for UCL. The notice and the demurrer did not identify/raise any issue with the eighth COA. Raising new argument in the reply is improper and is not considered unless good cause is shown for failure to present them before. Withholding a point until the closing brief deprives the respondent of notice and opportunity to be heard. (Campos v Anderson (1997) 57 Cal.App.4th 784, 794, n.3; In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) Although the Court reviewed the Page Defendants’ reply, the new arguments made were not considered as being improper.

Page Defendants’ Demurrer argued that Plaintiffs failed to cure the pleading defects identified in the Court’s ruling on the prior Demurrer to the Complaint. The Court held that the Complaint lacked specific facts to plead the where, how and by what means the representations were made. Plaintiffs’ FAC expressly alleged that Page Defendants made the misrepresentation when speaking in-person to Plaintiffs’ staff and at the “CS clinic where he [Page] was receiving services.” (FAC pars. 13-14.) Plaintiffs FAC sufficiently alleged the “where, how and by what means” by alleging Page Defendants’ misrepresentation being made at a “CS Clinic” and orally in a face-to-face introduction/conversation. Despite Page Defendants argument otherwise, Plaintiffs sufficiently cured the pleading defects found in the original Complaint.

Page Defendants again argued that Plaintiffs do not allege that Page represented himself to be a “licensed” architect by submitting plans to the city under his own and that the services provided were for “interior design.” However, these two arguments were raised in the demurrer to the complaint, reviewed by the Court, found unpersuasive, and overruled. Re-asserting the same two arguments again is improper. The court is foreclosed from rendering a new determination on the viability of previously overruled arguments absent a timely motion for reconsideration under Code of Civil Procedure section 1008. (Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.)

Against the first COA for negligence, Marshall argued that there are insufficient facts to plead a duty owed. The duty of care at issue is that owed between an architect/professional and his client. Marshall argued that there are insufficient facts to allege architect-client relationship. Plaintiffs alleged that they discovered the existence of Marshall after entry into a relationship with Page Defendants and based upon Page Defendants’ use of Marshall’s stamp on the architectural plans submitted to the city. Plaintiffs alleged that Marshall did not perform any architectural services on the project but failed to supervise or direct Page Defendants on the project. Plaintiffs further alleged that Marshall had knowledge of the project and worked with Page Defendants on other projects. (FAC pars. 29-34.) These facts are sufficient to get Plaintiffs passed the pleading stage to allege that Marshall, at the least had a relationship with Plaintiffs through the Page Defendants because Page Defendants somehow had access to or permissive use of Marshall’s architect stamp. It is through Page Defendants that there is sufficient fact pleading that Marshall, at the least owed a duty of care to Plaintiffs. Marshall’s argument to assert that the FAC insufficiently pled a duty of care is not persuasive.

As to the seventh COA for aiding and abetting, Marshall argued that there are insufficient facts to plead participation in the breach of a fiduciary duty. Marshall’s arguments denying any active role in Page Defendants’ alleged deception is improper for a demurrer. At the demurrer stage, the factual allegations of the pleading are deemed true. Characterizing the allegations as a fallacy and/or unbelievable is insufficient to grant the motion. Admittedly Plaintiffs’ FAC alleged that they entered into a service agreement with Page Defendants, however, Plaintiffs further plead facts showing that Marshall had some connection with Page Defendants’ misrepresentations because Page Defendants used Marshall’s stamp. These are sufficient facts to allege participation in a breach of fiduciary duty.

Marshall argued that the eighth COA for UCL failed to plead facts showing any responsible control over or collaboration with Page Defendants. However, as reviewed above, a liberal reading of the FAC showed that the alleged misconduct is that Marshall purportedly allowed Page Defendants – non-licensed architects – to use his architect stamp. The specific facts to support the allegation would necessarily be in possession of Marshall or Page Defendants in that it was their alleged collusion/collaboration that allegedly allowed Page Defendants access to or use of Marshall’s stamp. The allegations in the FAC are sufficient to plead facts to show unfair, unlawful, or fraudulent conduct against Marshall.

[1] Part of Page Defendants’ Notice to the demurrer misidentified the numbers of the COAs at issue as the fifth and sixth COAs. See the Notice’s first page identified with “2” at line 6.