On its face, this would appear to impose a duty on the City to maintain the storm drain in good repair to prevent leaking and discharge – which could cause the very harm at issue here.

On the current record, summary adjudication on the fourth cause of action for failure to perform mandatory duty is denied.

13. 2025-1501947 The Demurrer brought by Cross-Defendants Deckers Fine Gifts & Deckers Fine Collectibles, Inc., Daniel T. Feliciano and Kris Feliciano is sustained, Gifts & with 15 days leave to amend. Collectibles, Inc. vs. The Request for Judicial Notice (ROA No. 114) filed by Cross- Pearson Defendants is granted, pursuant to Evidence Code section 452, subdivisions (c) and (h).

While Cross-Complainants assert the Demurrer was untimely, the Court exercises its discretion to consider it. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.)

“The essential elements of an ejectment action are (1) the plaintiff’s valid interest in the property and (2) the defendant’s wrongful possession and withholding thereof.” (2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 866.)

In demurring to the claim for ejectment, Cross-Defendants assert Complainants cannot allege wrongful possession, relying on the following principle: “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.” (Verdier v. Verdier (1957) 152 Cal.App.2d 348, 352.) “When a joint tenant leases to a third party he confers upon the latter the same right of possession that he himself has.” (Ibid.) “[A] single cotenant may confer occupancy rights upon a third person.” (Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal.2d 585, 602.)

Cross-Defendants assert the Cross-Complaint concedes they obtained their Lease of the property from a cotenant and, thus, the element of wrongful possession is lacking.

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Per the Complaint, Robert E. Pearson, “is the successor trustee of the Maurice A. Enderle Trust dated February 4, 1988 (‘Pearson’) which is the 48% owner of the Property as well as the sole Principal of EMS Development Company (‘EMS’), the original Master Lessee/Sublessor of the 1976 Ground Lease....” (¶5 of Cross-Complaint.)

Thereafter, the Complaint alleges: “On or about November 3, 2018, Pearson entered into a Lease Agreement with Deckers, Daniel T. Feliciano, Kris Feliciano, which had an expiration date of December 31, 2027, beyond the expiration date of the Master Ground Lease.” (¶21 of Cross-Complaint and Exhibit 4 thereto.)

Given the Complaint indicates that “Pearson” refers to Robert E. Pearson in his capacity as successor trustee of the Maurice A. Enderle Trust, which is the 48% owner of the Property, and given the later allegation that “Pearson” entered into a Lease Agreement with Cross- Defendants, the Complaint suggests the Lease was entered into by Pearson, in his capacity as a partial owner of the property.

However, a review of the attached Lease Agreement indicates it was entered into between Cross-Defendants and “EMS Development Company d.b.a. Enderle Center” and executed by Sharyn A. Cable, on behalf thereof. (¶21 of Cross-Complaint and Exhibit 4 thereto.)

Per the Complaint, EMS Development Company is the original Master Lessee/Sublessor of the 1967 Ground Lease. (¶5 and ¶13 of Cross-Complaint.) The Cross-Complaint additionally alleges the Maurice A. Enderle Trust is the sole Principal of EMS Development Company. (¶5, ¶12 and ¶18 of Cross-Complaint.)

In addition to the above, the Cross-Complaint alleges that “EMS acted solely as master lessee and subleasor, and its authority to lease space within the shopping center was expressly limited by the terms and duration of the Ground Lease.” (¶15 of Cross-Complaint.) The Cross-Complaint also alleges: “Pearson was the master tenant and sublessor under the Master Ground Lease, and Pearson could not lawfully grant lease rights extending past the expiration of the Master Ground Lease.” (¶20 of Cross-Complaint.)

Based on the above, it is unclear whether the Cross-Complaint is alleging the Lease Agreement was entered into by Pearson, in his capacity as Trustee and partial owner or by EMS, as the master lessee.

Cross-Defendants additionally offer Fictitious Business Statements, which indicate that EMS Development Company was registered, first, as a fictious business name of Maurice A. Enderle (Exhibit 1 of RJN), and then subsequently in 2020, as a fictitious business name of Robert E. Pearson, Trustee, Maurice A. Enderle Declaration of Trust. (Exhibit 2 of RJN).

The Demurrer does not further extrapolate from the above or offer any authority, which addresses the significance of the fictitious business name.

It is only within the Reply, wherein Cross-Defendants first cite authority which notes that a sole proprietorship and “dba” are legally indistinguishable from the individual owner thereof. (See Reply: 2:18- 19, citing Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 701.)

As noted by Cross-Defendants, “[d]oing business under a fictitious business name does not create a separate legal entity.” (Meller & Snyder v. R&T Properties, Inc. (1998) 62 Cal.App.4th 1303, 1311.) “Doing business under another name does not create an entity distinct from the person operating the business.” (Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194, 1200.)

This authority, which was not included within the Demurrer, suggests there is no legal distinction between EMS Development Company and Robert Pearson, as Trustee of The Maurice Enderle Declaration of Trust (48% owner of the Property).

In addition to the above, Cross-Defendants note, within their Reply, that EMS is alleged to have been converted to a sole proprietorship in 1998 (¶12 of Cross-Complaint), and “[i]f a partnership consists of only two persons, the partnership dissolves by operation of law when one of them departs.” (Corrales v. Corrales (2011) 198 Cal.App.4th 221, 223.)

Cross-Defendants assert, within the Reply: “Since EMS, the partnership, ceased to exist in 1998 as alleged in the Cross-complaint, it did not, and could not, enter into Plaintiffs’ lease in November of 2018.” (Reply: 2:23-24.) The Reply continues, arguing that “one cannot enter into an agreement on behalf of a terminated entity.” (Reply: 3:18-20.)

The above reasoning was offered for the first time within Cross- Defendants’ Reply, which has deprived Cross-Complainants an opportunity to respond.

“It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitchen LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1161.)

Nonetheless, for the reasons stated above, the allegations in the Cross Complaint are ambiguous. As Complainants do not make clear who entered into the Lease Agreement or the interest intended to be transferred, the Demurrer is sustained, with leave to amend.

Cross-Complainants should clarify: (1) Who entered into the Lease Agreement; (2) Whether EMS, as a sole proprietorship maintained

rights under the Ground Lease; and (3) What interest was transferred in the Lease. (¶21 of Cross-Complaint and Exhibit 4 thereto.)

At the very least, as there is no legal distinction between EMS and the Trust which registered it as a fictitious business name, the Lease had the potential to transfer interests arising from partial ownership of the property.

While the Opposition asserts “[t]he specific, well-pleaded facts here are that the Deckers Lease was granted by EMS as master tenant under the Ground Lease” (Opposition: 8:21-22), the above is not at all clear.

Lastly, as the parties are in apparent agreement that the Second Cause of Action rises or falls with the First Cause of Action (See Opposition: 8:7-8), the demurrer to the Second Cause of Action is similarly sustained, with leave to amend, to allow greater clarification as to the actual controversy.

Cross-Defendants to give notice.

14. 2025-1522979 The motion by Defendant House of Imports (“Repair Facility”) for Marquez vs. judgment on the pleadings on the third cause of action for negligent Mercedes-Benz repair alleged in the Complaint filed by Plaintiffs Humberto USA LLC Marquez and Pauline A. Marquez (collectively, “Plaintiffs”) is granted.

The elements for negligent repair are the same as the elements for negligence. (See, Sabicer v. Ford Motor Company (C.D. Cal. 2019) 362 F.Supp.3d 837, 840.) “The elements of negligence are duty, breach, causation, and damages. Burgess v. Superior Court, (1992) 2 Cal. 4th 1064, 1072. ‘One who undertakes repairs has a duty arising in tort to do them without negligence.’ Sw. Forest Indus., Inc. v. Westinghouse Elec. Corp., 422 F.2d 1013, 1020 (9th Cir. 1970).” (Id., at 840-841.) “Any individual, partnership, corporation, association, or other legal relationship which engages in the business of providing service or repair to new or used consumer goods has a duty to the purchaser to perform those services in a good and workmanlike manner.” (Civ. Code, § 1796.5.)

Plaintiffs did not allege sufficient facts to state this cause of action. Plaintiffs only allege in a conclusory manner that Repair Facility’s “negligent breach of its duties owed to Plaintiffs were a proximate cause of Plaintiffs’ damages.” (Complaint, ¶ 54.) Accordingly, Repair Facility’s motion is granted with 30 days leave to amend.

In light of the ruling above, the Court need not determine whether the third cause of action is barred by the economic loss rule as pled.