Judge Walter P. Schwarm, Case 30-2021-01231974 2022-12-13 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01231974, Date: 2022-12-13 Tentative Ruling

Motion No. 1:

Defendant’s (Hyundai Motor America) unopposed Demurrer to Plaintiff’s Complaint (Demurrer), filed on 6-30-22 under ROA No. 39, is SUSTAINED without leave to amend.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”

Defendant challenges the fourth cause of action for violation of Business and Professions Code section 17200 contained in Plaintiff’s (Edwin Brown) Complaint, filed on 11-16-21 under ROA No. 2, pursuant to Code of Civil Procedure section 430.10, subdivision (e).

Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619 (Khoury), states, “Appellant's fourth cause of action alleges: ‘California Business and Professions Code Sections 17000, et seq., and 17200, et seq., states [sic ] that unfair competition shall mean and include unlawful, unfair or fraudulent business practices. [¶] . . . Defendants breached this statute by refusing to sell [the JPM products] to plaintiff, for the purpose of ruining and interfering with his beauty and supply business, with the effect of misleading plaintiff's customers.’ [¶] A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. [Citations.]”

Here, Plaintiff fails to plead facts with sufficient particularity to allege a cause of action under Business and Professions Code section 17200 because Plaintiff does not plead facts showing an unlawful, unfair, or deceptive business practice by Defendant. (Complaint, ¶¶ 38-57.)

Plaintiff has not opposed the demurrer.

Based on the above, the court SUSTAINS Defendant’s (Hyundai Motor America) Demurrer to Plaintiff’s Complaint, filed on 6-30-22 under ROA No. 39, with 14-days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Defendant is to give notice.

Motion No. 2:

Defendant’s (Hyundai Motor America) unopposed Motion to Strike Portions of Plaintiffs’ Complaint (Motion), filed on 6-30-22 under ROA No. 44, is SUSTAINED without leave to amend.

Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike 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 of Civil Procedure section 435, subdivision (b)(1), states, “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, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”

The Motion seeks to strike “. . . portions of Plaintiff’s Complaint on the grounds that Paragraphs 56 and 57 on page 7 and Paragraphs 5 and 9 on page 8 of Plaintiff’s ‘Prayer for Relief’, in its entirety, on the grounds that Plaintiff’s claims for equitable and injunctive relief under the UCL are not available where Plaintiff has an adequate remedy at law and therefore this request for damages is not drawn in conformity with the laws of this state. (Code Civ. Proc., §436 (a) and (b).)” (Motion; 1:23-28.)

Since the court sustained the Demurrer to the fourth cause of action, there is no basis to support the relief requested at paragraphs 5 and 9 in the Prayer for Relief. Plaintiff does not oppose the Motion. Therefore, the court GRANTS Defendant’s (Hyundai Motor America) unopposed Motion to Strike Portions of Plaintiffs’ Complaint, filed on 6-30-22 under ROA No. 44, with 14 days leave to amend from the date of service of the notice of the court’s ruling. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.)

Defendant is to give notice.