Superior Court, State of California



DATE: Thursday, 04 August 2022

TIME: 9:00 A.M.

Please note that between now and 26 August 2022, all hearings will be conducted remotely as the Old Courthouse will be closed. This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Please use the Zoom link below.

“A person's name is to him or her the sweetest and most important sound in any language.”—Dale Carnegie. All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” Please inform the Court how you, or if your client is with you, you and your client prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers. You might also try but that site mispronounces my name.

You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.

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Please Read This Page In Its Entirety As Some Of The Protocols Have Changed. Please Check This Tentative Rulings Page Before Making Any Appearance.

APPEARANCES.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply. See Jensen v Superior Court (San Diego) 154 Cal.App.3d 533.

For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.

This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.

Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.

All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.

While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.) As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.

Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.

Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”

COURT REPORTERS.

This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.

This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter so that only one reporter appears and serves as the official reporter for that hearing.

PROTOCOLS DURING THE HEARINGS.

During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.

The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.

TROUBLESHOOTING TENTATIVE RULINGS.

To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.

This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.) If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.

|LINE # |CASE # |CASE TITLE |TENTATIVE RULING |

|LINE 1 |22CV394550 |Daniel Angel v. Alon Delon and Remodeling; Eli Alon; |Demurrer of Defendants to Plaintiff’s Complaint. |

| | |Timothy Alvarado. |NO OPPOSITION BY Plaintiff. |

| | | |The demurrer of the third cause of action is OVERRULED. The demurrer |

| | | |to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. The|

| | | |motion to strike is GRANTED in its entirety. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 2 |22CV394550 |Daniel Angel v. Alon Delon and Remodeling; Eli Alon; |Motion of Defendants to Strike Allegations from Plaintiff’s Complaint.|

| | |Timothy Alvarado. | |

| | | | |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 3 |21CV389780 |Julie Prince v. Shannon Bruga; Jennifer Blomquist; |Motion of Defendants to Compel Plaintiffs to Respond to Discovery |

| | |Daniela Blomquist; Sherri Hammond.. Stop listening |Requests and to Deem Requests for Admissions to Be Admitted. |

| | | |This motion has been continued on prior occasions. |

| | | |NO TENTATIVE RULING. The parties should use the Tentative Ruling |

| | | |Protocol to advise this Court if they wish to go forward or some other|

| | | |intention. |

|LINE 4 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 5 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 6 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 7 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 8 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 9 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 10 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 11 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |

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|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

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|DEPARTMENT 20 | |

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|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|department20@ | |

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| |(For Clerk’s Use Only) |

|CASE NO.: |22CV394550 |Daniel Angel v. Alon Design and Remodeling, Inc., et al. |

|DATE: 04 August 2022 |TIME: 9:00 am |LINE NUMBER: 01, 02 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 03 August 2022. Please specify |

|the issue to be contested when calling the Court and Counsel. |

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|Orders on: |

|1. Demurrer of Defendants to Plaintiff’s Complaint; |

|2. Motion of Defendants to Strike Allegations from Plaintiff’s Complaint. |

I. Statement of Facts.

Plaintiff filed this complaint on 08 February 2022.[1]

plaintiff generally claims that in November 2020, he was hired to work for defendants as a salesperson and project manager quoting jobs to leads provided by defendants and closing the sales. He claims he would be entitled to equal split of profits after a certain lead to cost was deducted. No written contract was ever executed although drafts were exchanged.

Plaintiff itemizes jobs in which he claims not to have been paid with a total earnings of $351,500.00.

Plaintiff claims that he never was paid any overtime for working more than eight hours a day (¶ 29), that he never received overtime for working more than 40 hours a week (¶ 30), that he was never permitted to take 10 minute breaks (¶ 31), that he was on numerous occasions not permitted to take a 30 minute or longer lunch break and not paid for missed meal breaks (¶31), that he was not allowed to take other meal breaks (¶¶ 32-33), that defendants failed to keep accurate daily records of his work and meal breaks and maintain them according to requirements (¶¶ 34-35).

Plaintiff claims that he was constructively discharged in September 2021 after not having received commissions and with defendants cutting off communication with him (¶¶ 36-37).

Defendants have failed to pay plaintiff for amounts due for overtime, meal breaks, penalties or reimburse them for business expenses (¶ 38).

The complaint alleges causes of action for:

1. Breach Of Contract;

2. Quantum Meruit;

3. Unjust Enrichment;

4. Conversion;

5. Failure To Pay Wages;

6. Statutory Penalties;

7. Failure To Pay Overtime Wages;

8. Failure To Provide Meal And Rest Periods;

9. Failure To Provide Accurate Itemized Wage Statements;

10. Failure To Pay Wages When Due (Labor Code, § 204 And IWC Wage Order);

11. Misclassification Of Employee As Independent Contractor;

12. Failure To Reimburse Business-related Expenses; and

13. Unfair Business Practices

II. Motion.

A. Demurrers in General.

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144[2]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (demurrers for uncertainty.)

Code of Civil Procedure, § 430.10(e) states “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:. . . . .The pleading does not state facts sufficient to constitute a cause of action.”

Code of Civil Procedure, § 430.20(a) states: “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: The answer does not state facts sufficient to constitute a defense.)

A demurrer tests the legal sufficiency of a complaint. It serves to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818.) While a demurrer admits all material facts that were properly plead, a demurrer does not assume the truth of the contentions, deductions or conclusions of facts or law. (Levya v. Nielson (2000) 83 Cal.App.4th 1061, 1063.[3])

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct.[4] A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Even though the complaint is in some respects uncertain, the courts often hold it good against demurrer on the theory that, athough not a model of pleading, “its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (See Krieger v. Feeny (1910) 14 Cal.App. 538, 544.) The objection that the complaint (or some part of it) is uncertain goes to a doubt as to what the plaintiff means by the facts he or she has alleged, and it is designed to require the pleader to clarify the doubtful part by more explicit averments.

A demurrer is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, § 430.10(e).) "Conclusionary allegations . . . without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

B. Motions to Strike in General.

“The court may, upon a motion made pursuant to [Code of Civil Procedure, § 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, § 436.)

“A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.” (Rules of Court, rule 3.1322(b).)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Rules of Court, rule 3.1322(b).)

Under general rules of civil procedure, a motion to strike may be brought on the following two grounds:

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, § 436.)

Irrelevant matter includes “immaterial allegations.” (Code of Civil Procedure, § 431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code of Civil Procedure, § 431.10, subd. (b).)

“As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.” (Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶7:168, p. 7(I)-75 citing Code of Civil Procedure, § 437.) “Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.” (Id. at ¶7:169, pp. 7(I)-75 to 7(I)-76.)

“A motion to strike may be used as a scalpel—to cut out any irrelevant, false, or improper matters inserted therein.” (Weil & Brown, California Practice Guide: Civil Procedure before Trial (The Rutter Group 2019) §7:177, p. 7-61 citing Code of Civil Procedure, § 436(a) (internal punctuation modified.) “This includes allegations not essential to the claim or defense; allegations neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.’” Id. at §7:178 citing Code of Civil Procedure, § 431.10(b).) (internal punctuation modified.)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson, 67 Cal.App.4th at 1255.)

III. Analysis.

The motions on calendar have not been opposed. The Court believes there has been sufficient meet and confer attempts.

The Court notes the history of the service of the complaint upon defendants, and plaintiff attempting to enter defaults against defendants. The moving papers state that plaintiff filed an amended complaint but such does not appear on Odyssey.

A. Demurrer.

1. Third Cause of Action-Unjust Enrichment.

Plaintiff alleges that the third cause of action for unjust enrichment fails because unjust enrichment is not a stand-alone cause of action.

Plaintiff cites the authority of Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 for the proposition that unjust enrichment is not a cause of action but rather is a remedy and is synonymous with restitution.

But, the vehicle for challenging an improper remedy is a motion to strike, not demurrer. (See Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 384 [a demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy]; see also Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy].) Therefore, the demurrer is not sustainable on this ground.[5]

The demurrer is OVERRULED. The proper remedy would be a motion to strike. However, should plaintiff replead this cause of action, the parties might want to keep this suggestion in mind

2. Fourth Cause of Action-Conversion.

Plaintiff alleges that the fourth cause of action for conversion fails because there is no allegation of tangible personal property taken from plaintiff.

In Voris v. Lampert (2019) 7 Cal.5th 1141, 1444-45, the Supreme Court answer the question of whether a claim that by failing to pay the wages, the employer converted Plaintiff’s personal property to its own use and whether the employer is individually liable for the companies’ misconduct. The Supreme Court concluded that such conduct is not cognizable as a conversion claim. “The conversion tort is not the right fit for the wrong that Voris alleges, nor is it the right fix for the deficiencies Voris perceives in the existing system of remedies for wage nonpayment. (Voris v. Lampert at 1145.) The conversion tort is not the right fit for the wrong that alleged, nor is it the right fix for the deficiencies in the existing system of remedies for wage nonpayment. “We express no views here on whether additional, appropriately tailored remedies are called for. We hold only that a conversion claim is not an appropriate remedy. For that reason, we decline to supplement the existing set of remedies for wage nonpayment with an additional tort remedy in the nature of conversion.” (Voris v. Lampert at 1163.)[6]

The Court has considered whether to grant to Plaintiff leave to amend.

“An amendment should be allowed where the defect, though one of substance, may possibly be cured by supplying omitted allegations, and the plaintiff has not had a fair opportunity to do so, as where the demurrer was sustained to his first complaint.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168.) In ruling on a demurrer, “When a defect that justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768, citing Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.) Indeed, it is abuse of discretion not to allow a party to amend a correctable mistake in the context of a motion to strike or demurrer. (Id.)

Given the holding in the Voris case, the demurrer to the fourth cause of action for conversion is SUSTAINED WITHOUT LEAVE TO AMEND.

B. Motion to Strike.

In general, defendants contend that the references to an entitlement to punitive damages should be stricken because generally the only remedy for failing to pay someone is the money owed, plus interest. While there are exceptions for employers, those exceptions are codified. Finally, the alleged conduct itself does not warrant punitive damages.

Defendants also take issue with the claim for attorneys fees on public interest grounds.

Finally, defendants claim that disgorgement is not an available remedy under the alleged facts here.

1. Punitive Damages.

A plaintiff may recover punitive damages if “it is proven by clear and convincing evidence that the defendant has been guilty of . . . or malice.” (Civil Code, § 3294(a).) Malice is conduct which the defendant intends to cause injury to the plaintiff or “conduct which is carried on . . . with a willful and conscious disregard for the rights of safety of others.” (Civil Code, § 3294(c)(1).)

In general, a remedy for failing to pay someone and agreed-upon some is the money owed, plus interest (Civil Code, §3302.)

The Court believes that the allegations in the complaint do not support a proper claim of punitive damages.

2. Attorneys Fees.

Plaintiff seeks attorneys fees pursuant to Code of Civil Procedure, § 1021.5.

“Because the public always has a significant interest in seeing that laws are enforced, it always derives some benefit when illegal private or public conduct is rectified. Nevertheless, the Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right. The statute specifically provides for an award only when the lawsuit has conferred a significant benefit on the general public or a large class of persons. The trial court must determine the significance of the benefit and the size of the class receiving that benefit by realistically assessing the gains that have resulted in a particular case.” (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 635.) (internal citations omitted, punctuation altered.)

3. Disgorgement.

This Court agrees with defendants that disgorgement is not an available remedy as pled in this matter. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150-51 (“The nonrestitutionary disgorgement remedy sought by plaintiff closely resembles a claim for damages, something that is not permitted under the UCL.”)

The allegations are deemed STRICKEN.

IV. Tentative Ruling and Hearing.

The Tentative Ruling was duly posted.

V. Case Management.

The Order to Show Cause currently calendared for 27 October 2022 at 10:00 AM in this Department for the failure of plaintiff to appear will REMAIN AS SET.

VI. Conclusion and Order.

The demurrer of the third cause of action is OVERRULED. The demurrer to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. The motion to strike is GRANTED in its entirety.

|____________________________________ |_________________________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).

[2] “It is black-letter law a demurrer tests the pleading alone. (5 Witkin, California Procedure (3d ed. 1985) Pleading, § 895, p. 334.) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (Code of Civil Procedure, § 430.30 (b).) Defendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423.) (Internal quotations modified, modest editing used.)

[3] While the allegations of the complaint must be accepted as generally true, this rules does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits t0 the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobile-home Estates (1995) 36 Cal.App.4th 698, 709.) Allegations of a complaint must be sufficiently clear to appraise the defendant of the issues which he (or she) is to meet and defend. (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)

[4] Compare with Coyme v. Krempels (1950) 36 Cal.2d 257, a summary judgment motion, and which stands for the proposition that allegations in the complaint alone cannot be used to defeat a summary judgment motion.

[5] A demand for improper relief does not vitiate an otherwise valid cause of action. (See Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)

[6] See PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395: (“Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. A generalized claim for money [is] not actionable as conversion. (citations omitted).”

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