Case Number: 18SMCV00082 Hearing Date: February 06, 2020 Dept: P

Tentative Ruling

David Jarvie et al. v. Holly Surya, et al., Case No. 18SMCV00082

Hearing Date: February 6, 2020

Defendants’ Demurrer to and Motion to Strike Third Amended Complaint

Defendants Holly Surya and David Tishbi, Inc. demur to all causes of action. Defendants filed separate but substantively identical motions, so the court provides a single tentative ruling.

The court previously overruled defendants’ demurrer to the second, third and fourth causes of action and sustained as to the fifth and sixth causes of action with leave to amend.

Sham Pleading Doctrine

A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.

The SAC alleges Surya “uses the fictitious business name Evolve Design,” while the third amended complaint (TAC) states Surya “was an individual residing in Los Angeles County, State of California.” Further, the captions differ, with the TAC naming David Tisbhi, Inc. dba Evolve Design as a defendant, while the former named Holly Surya, dba Evolve Design.

Both pleadings allege David Tishbi Inc. is the owner of the fictitious business name Evolve Design, Inc. and that both Tishbi and Surya used Evolve Design to conduct their business. See TAC at ¶ 4, SAC at 3, 4. The substantive allegations of the SAC identified Evolve design as DTI’s dba. Changing the caption upon amendment was not improper, as the substantive allegations regarding Evolve’s relationship with both defendants are the same.

Some allegations regarding the breach of contract claim appear to contradict some allegations of the SAC, which alleged plaintiffs and Surya entered into a written contract. SAC at ¶¶7, 60. The TAC alleges the written agreement was not enforceable because it was unsigned, and the parties’ agreement was oral. TAC at ¶¶10, 11, 62. However, the SAC alleged the written agreement was never signed, but the parties had an oral agreement. See SAC ¶¶ 21(A), 22, 37(A), 45(A). These newly alleged facts do not contradict the prior pleading, but clarify an ambiguity regarding whether the agreement was oral or written. OVERRULED.

Motion to Strike

Defendants’ motion to strike the entire TAC because it is a sham pleading is denied, per the reasoning above.

Defendants’ motion to strike the request for $1,000,000 in punitive damages in violation of Cal. Civ. Code §3925(e) is denied. While a claim for exemplary damages cannot state a specific amount, the $1,000,000 sought is not a claim for punitive damages; plaintiffs allege it represents actual damages suffered due to alleged misrepresentations. For pleading purposes, this allegation must be treated as true. DENIED.