Judge: William Y. Wood, Case: 37-2023-00036481-CU-FR-NC, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - May 02, 2024

05/03/2024  02:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:William Y Wood

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Fraud Demurrer / Motion to Strike 37-2023-00036481-CU-FR-NC NAZAR VS AUTOCLAIMS DIRECT, INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 03/19/2024

Demurrers Plaintiff/cross-defendant Adam Nazar's demurrer to the answer (ROA #55) and the demurrer to the cross-complaint (ROA # 76) are overruled. Plaintiff/cross-defendant shall file an answer to the cross-complaint by May 13, 2024.

At this stage of the case, the court is required to liberally construe the allegations of the cross-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. The court is not persuaded that this standard is satisfied here. Specifically, the court is unable to determine, on this limited record, that the waivers and/or releases in the underlying Settlement Agreement are not applicable in this case where plaintiff is alleging fraud in the inducement of the contract.

Moreover, nearly all of the cases cited by the plaintiff did not resolve the issues presented in the demurrer by way of demurrer. See Manderville v. PCG & S Grp., Inc. (2007) 146 Cal. App. 4th 1486, 1500 (appeal from an order granting summary judgment); Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal. App. 3d 1463, 1473 (appeal from an order granting summary judgment); Rothstein v. Janss Inv.

Corp. (1941) 45 Cal. App. 2d 64, 72 (appeal of judgment following trial); Vai v. Bank of Am. Nat'l Trust & Sav. Ass'n. (1961) 56 Cal. 2d 329, 344 (appeal of judgment following trial); Persson v. Smart Inventions, Inc. (2005) 125 Cal. App 4th 1141 (appeal of judgment following trial); and San Diego Hospice v. County of San Diego (1995) 31 Cal. App. 4th 1048, 1055 (appeal of judgment following trial). The only case cited by plaintiff that involved a demurrer challenge is SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal. App. 5th 146,152–53 whereby the appellate court affirmed the trial court's sustaining of a demurrer relating to a finding that an amended complaint was barred by a release; it did not involve a case where, as here, defendant asserts a claim for declaratory relief based on a release which plaintiff argues cannot apply to a fraudulent inducement claim.

Turning to the demurrer to the answer, plaintiff is challenging the affirmative defenses numbered 5th (Statute of Limitations), 8th   (Failure to Mitigate), 10th   (Unclean Hands), 11th   (Failure to Allege Rescission), 12th   (Failure to Return/Restore Consideration), 13th   (Justification/Privilege) and 17th (Liability of Plaintiff and/or Others).

The determination of the sufficiency of the answer requires an examination of the complaint because the answer's adequacy is with reference to the complaint it purports to answer. S. Shore Land Co. v. Calendar No.: Event ID:  TENTATIVE RULINGS

3110764 CASE NUMBER: CASE TITLE:  NAZAR VS AUTOCLAIMS DIRECT, INC [IMAGED]  37-2023-00036481-CU-FR-NC Petersen (1964) 226 Cal. App. 2d 725, 733. The demurrer is overruled. Factual details about the basis for each affirmative defense can be explored in discovery. The affirmative defenses may also be challenged in the future by way of motion(s) for summary adjudication or at trial.

Motion for Protective Order Defendants/cross-complainants Autoclaims Direct, Inc., Peggy Bray and Ernest Bray's motion for a protective order (ROA # 56) is denied.

The Court has carefully reviewed the arguments and authorities presented by the parties and is not persuaded that defendants have established good cause for a protective order pursuant to CCP § 2030.090. There is no evidence that plaintiff/cross-defendant has abused the discovery process by propounding written discovery and serving deposition notices to investigate his claim that he was fraudulently induced into entering into the Settlement Agreement.

This is the tentative ruling for an appearance hearing (in person or remote) at 2:30 p.m. on Friday, May 3, 2024. If no party appears at the hearing, this tentative ruling will become the order of the Court as of May 3, 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.

Calendar No.: Event ID:  TENTATIVE RULINGS

3110764