Judge: Virginia Keeny, Case: 23STCV30314, Date: 2025-02-28 Tentative Ruling
Case Number: 23STCV30314 Hearing Date: February 28, 2025 Dept: 45
AHMAN DOLPHIN V. ej hawkins, ET AL.
DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE
Date of Hearing: February 28, 2025 Trial Date: November 3,
2025
Department: 45 Case
No.: 23STCV30314
Moving
Party: Defendant Side, Inc.
Responding
Party: Plaintiff Ahman Dolphin
BACKGROUND
On December 12, 2023, Plaintiff Ahman Dolphin (“Plaintiff”)
filed a complaint against Defendants EJ Hawkins (“Hawkins”), The Orion Real
Estate Investment Group, Inc. (“Orion Real Estate”), The Orion Group (“Orion
Group”), Side, Inc. (“Side”) (collectively, “Defendants”), and Does 1-10,
inclusive, for the following causes of action: (1) Breach of Fiduciary Duty;
(2) Fraud; (3) Conversion; (4) Professional Negligence; (5) Breach of Contract;
(6) Breach of the Covenant of Good Faith and Fair Dealing; and (7) Receiving
Stolen Property, seeking actual damages, exemplary and punitive damages, treble
damages, attorney’s fees, and costs of suit.
Defendant Side demurred to the complaint as well as filed a
motion to strike, to which Plaintiff opposed, and Defendant Side replied.
On June 28, 2024, after hearing, the Court sustained the
demurrer to the entirety of Plaintiff’s complaint with leave to amend and the
Court deemed the motion to strike moot. (06/28/24 Minute Order at p. 1.)
Plaintiff was ordered to file a First Amended Complaint within 20 days of the
Court’s order. (06/28/24 Minute Order at p. 1.)
On July 15, 2024, Plaintiff filed the operative First
Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1)
Breach of Fiduciary Duty; (2) Fraud; (3) Conversion; (4) Professional
Negligence; (5) Breach of Contract; (6) Breach of the Covenant of Good Faith
and Fair Dealing; and (7) Receiving Stolen Property.
On October 9, 2024, Defendant Side filed the instant
demurrer to each cause of action in the FAC. The demurrer is made on the
grounds that Defendant Side is not a responsible broker even though it is being
sued under a theory of respondeat superior.
Also, on October 9, 2024, Defendant Side filed a motion to
strike punitive damages from the FAC.
On February 13, 2025, Plaintiff filed opposition briefs as
to the demurrer and motion to strike, to which Defendant Side replied on
February 21, 2025.
On February 24, 2025, Plaintiff filed an opposition to
Defendant Side’s request for judicial notice. The opposition to Defendant
Side’s request for judicial notice is untimely as all opposition papers were
required to have been filed and served at least nine court days prior to the
hearing. (Code Civ. Proc., § 1005, subd. (b).) In its discretion, the Court
will consider the untimely opposition to the request for judicial notice. (Cal.
Rules of Court, Rule 3.1300(d).)
[Tentative] Ruling
Based on the foregoing, the Court SUSTAINS IN PART and
OVERRULES IN PART the demurrer of Defendant Side to the FAC.
The Court OVERRULES the demurrer to the first, third,
fourth, and seventh causes of action in the FAC.
The Court SUSTAINS the demurrer to the second, fifth, and
sixth causes of action in the FAC with 20 days leave to amend.
The Court GRANTS the motion to strike with 20 days leave to
amend.
LEGAL
STANDARD
A party
may demur to a complaint on the grounds that it “does not state facts sufficient
to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A
demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.)
When
considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT
Mobile, Inc.
(2010) 185 Cal.App.4th 1068, 1078.) “A demurrer tests the pleadings alone and
not the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v.
Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p.
747.)¿On demurrer, a court does “not accept contentions, deductions or
conclusions of fact or law.” (Simonyan v. Nationwide Insurance Company of America (2022) 78 Cal.App.5th
889, 895.)
Although
courts construe pleadings liberally, sufficient facts must be alleged to
support the allegations pled to survive a demurrer. (Rakestraw v. California
Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) Where a demurrer is
sustained, leave to amend must be allowed where there is a reasonable
possibility of successful amendment. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to
demurrer to show the court that a pleading can be amended successfully. (Ibid.)
“Any
party, within the time allowed to respond to a pleading may serve and file a
notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. §
435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter
inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike
out all or any part of any pleading not drawn or filed in conformity with the
laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. §
436(b).)
DEMURRER
Meet
and Confer Requirement
Before filing a demurrer or motion to strike, the
moving party must meet and confer in person, by video conference, or by
telephone with the party who filed the pleading to attempt to reach an
agreement that would resolve the objections to the pleading. (CCP §§ 430.41(a),
435.5.) “Any determination by the court that the meet and confer process was
insufficient shall not be grounds to overrule or sustain a demurrer” or to
grant or deny a motion to strike. (CCP §§ 430.41(a)(4), 435.5.)
The meet and confer requirement has not been
satisfied. Defendant Side’s counsel attests to meeting and conferring with
counsel for Plaintiff via written correspondence prior to filing the demurrer
and motion to strike. (Murphy Decl., ¶ 4.) Defendant Side has not complied with
CCP §§ 430.41(a) and 435.5. However, the Court will still assess the merits of
the demurrer and motion to strike. The parties are reminded to comply with the
requirements of the Code of Civil Procedure.
Judicial Notice
Defendant Side requests the Court take judicial
notice of the following document pursuant to Evid. Code §§ 451 and 452:
1.
Exhibit 1 - Public License History from
the Department of Real Estate in the State of California dated October 9, 2024,
identifying Moving Party as Defendant Hawkins’s Responsible Broker from October
12, 2020 to February 16, 2024. Prior to October 12, 2020, Defendant Hawkins’s
Responsible Broker was listed as “Walter L. Dees” from July 19, 2019 to October
11, 2020.
Plaintiff opposes the request for judicial notice on
the grounds that the legal standards for judicial notice are not met. The Court
rejects Plaintiff’s contention that the records are not relevant in this
matter. The Court finds that the records are relevant to whether Defendant Side
is responsible for the alleged actions of Defendant Hawkins as alleged in the
FAC.
The Court “can take judicial notice of the
existence, content and authenticity of public records and other specified
documents, but do not take judicial notice of the truth of the factual matters
asserted in those documents.” (Glaski v. Bank of America (2013) 218
Cal.App.4th 1079, 1090.)
The Court therefore GRANTS the request for judicial
notice. The Court takes judicial notice of the existence of the document but
not the truth of the factual matters stated therein pursuant to Glaski v.
Bank of America, supra, 218 Cal.App.4th 1079, 1090.
Pertinent
Allegations of the First Amended Complaint
The
Court finds it necessary to set forth the pertinent allegations of the FAC.
Plaintiff alleges the following: at all times relevant to the FAC, Defendant
Side is and was a real estate broker as such term is defined in Bus. &
Prof. Code § 10131. (FAC, ¶ 9.) On or about June 23, 2020, Defendant Side
entered into a Broker/Associate Agreement under which Defendant Hawkins became
Defendant Side’s sales associate. (FAC, ¶ 15; Exh. 1.) On or about July 28,
2020, Defendant Side became officially affiliated with Defendant Hawkins (under
the fictitious name Orion Real Estate) on the California Department of Real
Estate public license database. (FAC, ¶ 16.)
Plaintiff
alleges that, in October of 2019, he entered into a written contract (the
“Contract”) with Defendant Hawkins to obtain his services as a real estate
agent to represent Plaintiff in purchasing a vacant lot located at 7305 Pyramid
Place, Los Angeles, CA 90046 (the “Property”). (FAC, ¶ 17; Exh. 2.) Plaintiff
signed an agreement to purchase the Property for $1.8 Million, contingent upon
approval of the Plans, and Seller providing Financing for the purchase and
construction. (FAC, ¶ 20.) Plaintiff alleges that Defendant Hawkins instructed
Plaintiff to place a $24,000.00 deposit into escrow pursuant to routing and
account numbers provided by Defendant Hawkins, which—according to
Plaintiff—would finalize the agreement and complete the formation of the Real
Estate Purchase Agreement (“Purchase Agreement”). (FAC, ¶ 21.) Plaintiff
alleges that from October 2019 until November 2023, Plaintiff relied on
Defendant Hawkins’s alleged representations that the Property was still in
escrow awaiting approval of the Plans. (FAC, ¶ 24.) Plaintiff alleges that
Defendant Side, as a broker, failed to exercise reasonable supervision over the
activities of Defendant Hawkins as required by Bus. & Prof. Code § 10177.
(FAC, ¶ 26.)
On
June 16, 2021, after becoming affiliated with Defendant Side, and acting under
Defendant Side’s brokerage license, Defendant Hawkins falsely communicated to
Plaintiff that the Escrow had been extended. (FAC, ¶ 27.) Defendant Hawkins was
obligated to disclose all such communications to Defendant Side. (FAC, ¶ 27.)
Plaintiff alleges that such representation was false and had Defendant Side
been exercising reasonable supervision and control, it would have been apparent
that Defendant Hawkins was involved in willfully defrauding Plaintiff. (FAC, ¶
27.) Plaintiff also alleges further misrepresentations by Defendant Hawkins
that occurred on October 5, 2021, January 5, 2022, and October 28, 2022, all of
which occurred after Defendant Hawkins became affiliated with Defendant Side
and was acting under Defendant Side’s brokerage license. (FAC, ¶¶ 28-30.)
On
or about November 15, 2023, Plaintiff became aware that the Property had been
listed for sale at $3,995,000.00 by a different seller. (FAC, ¶ 31.) Plaintiff
alleges that Defendant Hawkins misrepresented that the property had undergone a
“double escrow,” and Defendant Hawkins had wired Plaintiff’s $24,000.00 deposit
into an account belonging to himself. (FAC, ¶¶ 31 and 34.) In November of 2023,
when confronted by Plaintiff, Defendant Hawkins reassured Plaintiff that, as a
result of his affiliation with Defendant Side, his actions and Plaintiff’s
escrow deposit were insured by professional liability insurance. (FAC, ¶ 33.)
First
Cause of Action for Breach of Fiduciary Duty
Defendant
Side contends that the first cause of action—and each cause of action in the FAC—fails
because it was not the responsible broker at the time of the transaction or for
the transaction. Defendant Side argues that Plaintiff attaches the Broker/Associate
Agreement to the FAC, which is dated June 23, 2020, and such agreement was
executed after the time of the alleged
transaction. Plaintiff argues that the first cause of action is sufficiently
alleged as the FAC alleges that the transaction was ongoing through November of
2023, which is long after Defendant Side became Defendant Hawkins’s supervising
broker.
“The
elements of a cause of action for breach of fiduciary duty are the existence of
a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 820.) “Brokers . . . are required to supervise the activities
of their salespersons and may be disciplined and held liable based on
salespersons’ conduct within the scope of their employment.” (Horiike v.
Coldwell Banker Residential Brokerage Co. (2016) 1 Cal.5th 1024, 1036.)
“[A]n associate licensee has no power to act except as the representative of
his or her broker.” (Id. at p. 1037.) “For purposes of establishing tort
liability . . . California courts have held that a broker is liable under the
doctrine of respondeat superior for the tortious acts of his salespeople during
the course and scope of a business because the salesperson is the agent of the
broker.” (Grubb & Ellis Co. v. Spengler (1983) 143 Cal.App.3d 890,
895.)
Defendant
Side contends that it was not the responsible broker for Defendant Hawkins
during the time of the alleged transaction or for the transaction. (Dem. at p.
4:12-14.) Based on the request for judicial notice, “Walter L. Dees” was the
responsible broker for Defendant Hawkins from July 19, 2019 through October 11,
2020. (RJN at Exhibit 1.) The transaction at issue was commenced in October of
2019. (FAC, ¶ 17.) Thus, Defendant Side was not the responsible broker for
Defendant Hawkins when the transaction was commenced.
However,
Defendant Side’s request for judicial notice indicates that it was the
responsible broker for Defendant Hawkins from October 12, 2020 through February
16, 2024. (RJN at Exhibit 1.) In fact, the Broker/Associate Agreement, which
was executed by Defendant Side and Defendant Hawkins on June 23, 2020, clearly
states that “[a]ll listings of property, and all agreements, acts or actions
for performance of licensed acts, which are taken or performed in connection
with this [a]greement, shall be taken and performed in the name of Broker.”
(FAC, Exh. 1 at p. 2.) Moreover, such agreement provides that Defendant Hawkins
was under the control of Defendant Side as to the results of Defendant
Hawkins’s work. (FAC, Exh. 1 at p. 2.)
The
Court rejects Defendant Side’s argument that it is not the responsible broker.
Although the transaction commenced in October of 2019, which was prior to
Defendant Side becoming the responsible broker for Defendant Hawkins, Defendant
Hawkins is alleged to have taken wrongful actions during the pendency of such
transaction during which time Defendant Side was responsible for Defendant
Hawkins. (FAC, ¶¶ 27-30.) In sum, Defendant Side is responsible for the acts of
Defendant Hawkins from June 23, 2020, which is when the Broker/Associate
Agreement was signed through November of 2023, which is when Plaintiff
discovered the wrongful actions of Defendant Hawkins. The FAC alleges wrongful
actions of Defendant Hawkins during such time period. (FAC, ¶¶ 27-30.) Plaintiff
alleges that Defendant Hawkins made false representations concerning the
transaction: (1) after becoming affiliated with Defendant Side; and (2) acting
under Defendant Side’s brokerage license. (FAC, ¶¶ 27-30.)
The
Court finds that Plaintiff has stated a valid cause of action for breach of
fiduciary duty. (FAC, ¶¶ 35-42.) The
Court therefore OVERRULES the demurrer of Defendant Side to the first cause of
action for breach of fiduciary duty.
Second
Cause of Action for Fraud
“The
elements of fraud are (a) a misrepresentation (false representation,
concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c)
intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.”
(Hinesley v. Oakshade Town Ctr.
(2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must
be alleged factually and specifically as to every element of fraud, as the
policy of “liberal construction” of the pleadings will not ordinarily be
invoked. (Lazar v. Superior Court (1996)
12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the
plaintiffs must plead the names of the persons allegedly making the false
representations, their authority to speak, to whom they spoke, what they said
or wrote, and when it was said or written. (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
The
Court finds that the second cause of action for fraud is insufficiently
alleged. (FAC, ¶¶ 43-49.) Although not raised by Defendant Side, the Court finds
that Plaintiff has failed to allege by what means the purported
misrepresentations were tendered. (FAC, ¶¶ 24-34, 43-49.) Plaintiff has
therefore not alleged fraud with the required specificity.
The
Court therefore SUSTAINS the demurrer to the second cause of action for fraud.
The Court finds that there is a reasonable possibility of successful amendment.
Plaintiff may allege facts which, if proven, would state a cause of action for
fraud. Thus, leave to amend will be allowed as to the second cause of action.
Third
Cause of Action for Conversion
“Conversion
is the wrongful exercise of dominion over the property of another. The elements
of a conversion claim are: (1) the plaintiff’s ownership or right to possession
of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)
The
Court finds that the third cause of action for conversion is sufficiently
alleged. (FAC, ¶¶ 50-54.) Plaintiff has alleged that Defendant Hawkins and one
or more of the Doe defendants converted the $24,000.00 deposit by instructing
Plaintiff to wire the funds to an account over which Hawkins had actual or
constructive control. (FAC, ¶ 51.) Plaintiff alleges that Plaintiff has been
damaged due to the acts of Defendants in an amount of not less than $24,000.00.
(FAC, ¶ 52.) Defendant Hawkins is alleged to have been acting under the license
of Defendant Side and under the control of Defendant Side when he converted
Plaintiff’s funds. (FAC, ¶ 53.)
The
Court therefore OVERRULES the demurrer of Defendant Side to the third cause of
action for conversion.
Fourth
Cause of Action for Professional Negligence
In
order to state a claim for negligence, Plaintiff must allege the elements of
(1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3)
“proximate cause resulting in an injury.” (McIntyre
v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
The
Court finds that the fourth cause of action for professional negligence is
sufficiently alleged. (FAC, ¶¶ 55-59.) Plaintiff has alleged the elements of
duty, breach, causation, and damages. (FAC, ¶¶ 55-59.)
The
Court therefore OVERRULES the demurrer of Defendant Side to the fourth cause of
action for negligence in the FAC.
Fifth
Cause of Action for Breach of Contract
To
state a cause of action for breach of contract, Plaintiff must be able to
establish “(1) the existence of the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) the resulting
damages to the plaintiff.” (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
If
a breach of contract claim “is based on alleged breach of a written contract,
the terms must be set out verbatim in the body of the complaint or a copy of
the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999)
74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “plead
the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v.
TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)
The
Court finds that the fifth cause of action for breach of contract is
insufficiently alleged. (FAC, ¶¶ 60-63.) Plaintiff has failed to allege that he
performed under the contract or was excused from performance. (FAC, ¶¶ 60-63.)
The
Court therefore SUSTAINS the demurrer to the fifth cause of action for breach
of contract. The Court finds that there is a reasonable possibility of
successful amendment. Plaintiff may allege facts which, if proven, would state
a cause of action for breach of contract. Thus, leave to amend will be allowed
as to the fifth cause of action.
Sixth
Cause of Action for Breach of the Implied Covenant of Good Faith and Fair
Dealing
“A
breach of the implied covenant of good faith and fair dealing involves something
beyond breach of the contractual duty itself and it has been held that bad
faith implies unfair dealing rather than mistaken judgment.” (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the
allegations do not go beyond the statement of a mere contract breach and,
relying on the same alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they may be
disregarded as superfluous as no additional claim is actually stated … [T]he
only justification for asserting a separate cause of action for breach of the
implied covenant is to obtain a tort recovery.” (Id. at pp. 1394-1395.) To recover in tort for breach of the implied
covenant, the defendant must “have acted unreasonably or without proper cause.”
(Id. at p. 1395 [citations and
italics omitted].)
The
Court finds that the sixth cause of action for breach of the implied covenant
of good faith and fair dealing is insufficiently alleged. (FAC, ¶¶ 64-67.)
Here, the allegations for such cause of action do not go beyond the statement
of a mere contract breach and seeks the same recovery as the breach of contract
cause of action. (FAC, ¶¶ 63, 67.)
The
Court therefore SUSTAINS the demurrer to the sixth cause of action for breach
of the implied covenant of good faith and fair dealing. The Court finds that
there is a reasonable possibility of successful amendment. Plaintiff may allege
facts which, if proven, would state a cause of action for breach of the implied
covenant of good faith and fair dealing. Thus, leave to amend will be allowed
as to the sixth cause of action.
Seventh
Cause of Action for Violation of Receiving Stolen Property
“Every
person who buys or receives any property that has been stolen or that has been
obtained in any manner constituting theft or extortion, knowing the property to
be so stolen or obtained, or who conceals, sells, withholds, or aids in
concealing, selling, or withholding any property from the owner, knowing the
property to be so stolen or obtained, shall be punished by imprisonment in a
county jail for not more than one year, or imprisonment pursuant to subdivision
(h) of Section 1170.” (Pen. Code § 496(a).) “The elements of receiving stolen
property under section 496(a) are (1) stolen property; (2) knowledge that the
property was stolen; and (3) possession of the stolen property.” (People v.
Coca (2023) 96 Cal.App.5th 451, 459.)
Here,
the Court finds that the seventh cause of action is sufficiently alleged. (FAC,
¶¶ 68-73.)
The
Court therefore OVERRULES the demurrer of Defendant Side to the seventh cause
of action in the FAC.
MOTION TO STRIKE
Defendant
Side moves to strike punitive damages allegations from the FAC.
Plaintiff’s
Punitive Damages Allegations are Insufficient
In
order to state a prima facie claim for punitive damages, a complaint must set
forth the elements as stated in the general punitive damage statute, Civil Code
section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th
704, 721.) These statutory elements include allegations that the defendant has
been guilty of oppression, fraud or malice.¿(Civ. Code, § 3294, subd. (a).)¿¿¿
“In
order to survive a motion to strike an allegation of punitive damages, the
ultimate facts showing an entitlement to such relief must be pled by a
plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253,
1255.) California Civil Code, Section 3294 authorizes punitive damages
upon a showing of malice, fraud, or oppression. Malice is defined as either
“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.” (Civ. Code, § 3294,
subd. (c)(1).) “Despicable conduct is conduct which is so vile, base,
contemptible, miserable, wretched or loathsome that it would be looked down
upon and despised by ordinary decent people.” (Mock v. Michigan Millers
Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) California Civil Code,
Section 3294(c)(2) defines oppression as “despicable conduct that subjects a
person to cruel and unjust hardship in conscious disregard of that person’s
rights.” Fraud under California Civil Code, Section 3294(c)(3) “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.”
Specific facts must be pled in support of punitive damages. (Hillard v. A.H.
Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)
“An
employer shall not be liable for [punitive] damages ..., based upon acts of an
employee of the employer, unless the employer had advance knowledge of the
unfitness of the employee and employed him or her with a conscious disregard of
the rights or safety of others or authorized or ratified the wrongful
conduct.... With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, [or] ratification ... must be on the part
of an officer, director, or managing agent of the corporation.” (Civ. Code §
3294.) The California Supreme Court interpreted the “latter statement as
requiring the officer, director, or managing agent to be someone who
‘exercise[s] substantial discretionary authority over decisions that ultimately
determine corporate policy.’” (White v. Ultramar, Inc. (1999) 21 Cal.4th
563, 577.)¿¿
Plaintiff
has failed to allege sufficient facts of showing malice, fraud, or oppression
by Defendant Side. The allegations in support of punitive damages are
insufficient. Defendant Side is a corporation as acknowledged by Plaintiff.
(FAC, ¶ 8.) Plaintiff, however, has failed to allege specific facts that an
officer, managing agent, or director of Defendant Side authorized or ratified
the acts complained of in the FAC.
The
motion to strike is therefore GRANTED with leave to amend.
CONCLUSION
Based on the foregoing, the Court SUSTAINS IN PART and
OVERRULES IN PART the demurrer of Defendant Side to the FAC.
The Court OVERRULES the demurrer to the first, third,
fourth, and seventh causes of action in the FAC.
The Court SUSTAINS the demurrer to the second, fifth, and
sixth causes of action in the FAC with 20 days leave to amend.
The Court GRANTS the motion to strike with 20 days leave to
amend.
Moving party is ordered to give notice.