Filippini Wealth Management, Inc. v. Max Baril, et al.
Case No: 18CV04339
Hearing Date: Mon May 06, 2019 9:30

Nature of Proceedings: Demurrer/Motion Strike Plaintiff’s Complaint

Filippini Wealth Management, Inc., v. Max Baril, etc., et al. (Judge Sterne)

Case No. 18CV04339

Hearing Date: May 6, 2019

HEARING: (1) Demurrer of Defendant Meridian Group Real Estate Management to Complaint

(2) Motion of Defendant Meridian Group Real Estate Management to Strike Portions of Complaint

ATTORNEYS: For Plaintiff Filippini Wealth Management, Inc.: Matthew Clarke, Dugan P. Kelley, Kelley Clarke PLLC

For Defendant Max Baril, individually and as trustee: Danielle L. Kuck, S. Joanna Dyriam, Wood, Smith, Henning & Berman LLP

For Defendant Meridian Group Real Estate Management, Inc. (Sued as Doe 1): Barry Z. Brodsky, Steve R. Belilove, Kaufman Dolowich & Voluck LLP

TENTATIVE RULING:

(1) For the reasons set forth herein, the demurrer of defendant Meridian Group Real Estate Management, Inc., to each cause of action and as to the complaint as a whole is sustained, with leave to amend, on the grounds that the complaint fails to state any cause of action against this defendant and is uncertain. Plaintiff shall file and serve its first amended complaint on or before May 21, 2019.

(2) For the reasons set forth herein, the motion to strike of defendant Meridian Group Real Estate Management, Inc., is made moot by the sustaining of the demurrer and is ordered off calendar.

Background:

On September 4, 2018, plaintiff Filippini Wealth Management, Inc., filed its original complaint in this action asserting six causes of action for: (1) breach of contract; (2) constructive eviction; (3) breach of implied covenant of quiet enjoyment; (4) trespass; (5) intrusion into private affairs; and (6) declaratory relief. The original complaint identifies by name only one defendant, Max Baril, in his individual capacity and in his capacity as trustee of two trusts. The term “defendant” is defined in the complaint as referring to Baril in all of his capacities. (Complaint, ¶ 2.)

On January 2, 2019, plaintiff filed an amendment to the complaint identifying defendant Doe 1 as Meridian Group Real Estate Management, Inc. (Meridian).

Following Meridian’s unsuccessful efforts to engage plaintiff in a meet and confer process to address pleading issues (Belilove decl., ¶¶ 2-5), Meridian filed its demurrer to the complaint and its motion to strike portions of the complaint.

No opposition or other response has been filed to the demurrer or to the motion to strike.

Analysis:

(1) Demurrer

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.) “As against special demurrers, the facts must be alleged with sufficient clarity to inform defendants of the issues to be met.” (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.)

Very little analysis is necessary to resolve this demurrer. The complaint defines the term “defendant” as referring solely to defendant Baril in his various capacities. There are no allegations in the complaint as to who defendant Meridian is in the context of plaintiff’s claims or as to what defendant Meridian did that gives rise to the asserted claims of liability. The complaint most literally does not set forth allegations against Meridian sufficient to state any cause of action. Moreover, to the extent that the complaint alludes to persons acting under Baril’s authority, the complaint is uncertain as to who those persons are or what those persons are alleged to have done.

This is a particularly good example of the type of pleading issue that could, and should, have been resolved by the meet and confer process of Code of Civil Procedure section 430.41.

The general and special demurrer will be sustained to all causes of action with leave to amend.

(2) Motion to Strike

In view of the sustaining of the demurrers to each cause of action, the motion to strike is moot and will be ordered off calendar.