Case Number: SC121951    Hearing Date: August 01, 2014    Dept: P

TENTATIVE RULING – DEPT. P

AUG. 1, 2014 CALENDAR No: 3

SC121951 — CSOKE v. MASSABAND, et al. [R/T 13S09559]

STATUS OF SMALL CLAIMS MATTER

Continued to next date in the unlimited matter. See below.

DEFENDANTS’ DEMURRER TO COMPLAINT

Defendants demur to all five claims alleged against them. The Court will sustain the demurrers to all five claims, one without leave to amend.

With regard to the first cause of action for breach of contract, the second and third causes of action for negligence:

These claims, as currently alleged, are not properly stated. Nevertheless, the Court envisions proper amendment, and will grant leave to amend.

With regard to the fourth cause of action for common counts:

Plaintiffs, who did not oppose the demurrer to this claim, have not shown that they can validly amend their complaint to allege this claim. It is their burden to do so. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”); Hendy v. Losse (1991) 54 Cal.3d 723, 742. Accordingly, sustaining the demurrer to the claim without leave to amend is appropriate.

With regard to the fifth cause of action for intentional interference with prospective economic advantage:

“[A] plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead … that the defendant not only knowingly interfered with the plaintiff’s expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself.” Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995)11 Cal.4th 376, 393; see also Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 881 (plaintiff must prove that the defendant’s interfering conduct was “independently wrongful.”). The act “must be wrongful by some legal measure, rather than merely a product of an improper, but lawful, purpose or motive.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159, fn. 11. As explained in the moving and reply briefs, Plaintiffs have not properly alleged “independently wrongful” conduct, viz., they have not properly alleged that the alleged statements made by Defendants to the third parties were untrue.

The Court notes that Plaintiffs’ discussion of San Jose Const., Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544-1545 at 6:6-10 of the opposition brief fails to acknowledge the express holding and explanation thereof by that court. That case actually expressly states – at the very pages cited by Plaintiffs – that “a plaintiff mustshow that the defendant engaged in an independently wrongful act.” Id (emphasis added). In other words, San Jose says the opposite of what Plaintiffs assert it does. Counsel are reminded of their obligations under Cal. Rules of Court, Rule 5-200, and CCP 128.7.

Demurrer to the fourth cause of action for common counts is sustained without leave to amend. Demurrers to the balance of the complaint are sustained with leave to amend.

DEFENDANTS’ MOTION TO STRIKE (PUNITIVE DAMAGES)

Motion is taken off-calendar as moot based on the Court’s ruling sustaining with leave to amend the demurrer to the fifth cause of action.

FILING OF FIRST AMENDED COMPLAINT

Plaintiffs are to serve and file their first amended complaint, which is to be clearly captioned as such, on or before August 18, 2014. The FAC is not to allege any cause of action other than those which the Court has granted Plaintiffs leave to amend. Cf., People v. Clausen (1967) 248 Cal.App.2d 770, 785-786 (generally, where the court grants leave to amend, the scope of the amendment is limited by the cause of action to which the demurrer was sustained).

CASE MANAGEMENT CONFERENCE

Re-set to October 8, 2014 at 8:30 a.m.

OTHER MATTERS

In amending their complaint, Plaintiffs should carefully consider whether they wish to continue utilizing “the disfavored shotgun (or ‘chain letter’) style of pleading, wherein each claim for relief incorporates by reference all preceding paragraphs, which often masks the true causes of action.” International Billing Services, Inc. v. Emigh(2000) 84 Cal.App.4th 1175, 1179.

The complaint and Plaintiffs’ opposition briefs contain innumerable typographical and editing errors. Counsel are asked to carefully proofread (and cite-check) all documents submitted for the Court’s review.

NOTICE

__________ shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.