Diyar Irvine, LLC vs. Elzoheiry

A liberal construction is given to the application of the compulsory cross-complaint statute. (Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 967.) “The test requires not an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them”. The key question is “are any factual or legal issues relevant to both claims?” The goal is to avoid duplication of time and effort that comes from separate suits on the same events. (Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777.)

Cross-complaints for equitable indemnity are virtually always transactionally related to the complaint that has been filed in the main action. (Time for Living Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38-39.) This is because “[a]n indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrences or series of occurrences as asserted by the plaintiff.” (Id. at 39.)

Merits

Here, the proposed Cross-Complaint asserts causes of action for 1) equitable indemnity, 2) comparative contribution, 3) negligence, 4) total equitable indemnity, 5) restitution based on unjust enrichment, and 6) declaratory relief. The Cross-Complaint arises from the same transactions and occurrences that are the subject of Plaintiffs’ First Amended Complaint (FAC). The Cross-Complaint is compulsory.

There is a liberal policy regarding the filing of cross-complaints. If the proposed cross-complaint is compulsory, leave must be granted so long as defendant is acting in good faith. (Code Civ. Proc. § 426.50.)

Here, the cross-complaint is compulsory and there is no evidence that Defendant has acted in bad faith or with a dishonest purpose. (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100 [“‘Bad faith,’ is defined as [t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake ..., but by some interested or sinister motive[,] ... not simply bad judgment or negligence, but rather ... the conscious doing of a wrong because of dishonest purpose or moral obliquity; ... it contemplates a state of mind affirmatively operating with furtive design or ill will.”] (internal quotation marks omitted).)

The standard for showing bad faith is high. “Substantial evidence must support the trial court's decision” to deny the motion.” (Id. at 99)

While Abas’ decision not to file this Motion earlier may not have been the best decision, Plaintiffs have not provided sufficient evidence to show bad faith conduct.

Abas shall file the Cross-Complaint within 7 days of this ruling.

Abas shall give notice of this ruling.

Motions for Summary Judgment/Adjudication #1

Defendant, Cross-Complainant and Cross-Defendant Toorak Capital Partners LLC moves for summary judgment / adjudication against Plaintiff and Cross-Complainant Diyar Irvine, LLC, and Plaintiffs Sadek El Sewedy and Ahmed El Sewedy (Plaintiffs), as to Plaintiffs’ First Amended Complaint (FAC) and Plaintiffs’ Second Amended Cross-Complaint (SACC). For the following reasons, the motion for summary judgment is DENIED.

Evidentiary Objections

Both Plaintiffs and Toorak filed evidentiary objections. The Court overrules Plaintiffs’ objections to the declarations of Stephen J. Tyde Jr. The remainder of Plaintiffs’ objections are not material to the disposition of the motion. (Code Civ. Proc. § 437c(q).) Toorak’s evidentiary objections are overruled.

Request for Judicial Notice

Toorak asks the Court to take judicial notice of 15 documents: the Articles of Organization for Diyar filed with the California Secretary of State, the California State Bar attorney profile for James O’Neal,

Plaintiffs’ First Amended Complaint, Diyar’s Second Amended Cross-Complaint, Athene’s Cross-Complaint and Plaintiffs’ Answer, 8 documents recorded with the Orange County Recorder, and Toorak’s Answer to the FAC.

Toorak’s request for judicial notice is granted, but not as to the truth of the contents of those documents. (Evid. Code § 452(c), (d), and (h); Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.)

Plaintiffs ask the Court to take judicial notice of the Stipulated Final Judgment and Order for Permanent Injunction and Equitable Relief, Federal Trade Commission v. American Consulting Group, LLC, et al., United States District Court, Central District of California, Southern Division, Case No. SACV12-01561 DOC (JPRx), filed on September 18, 2013, and 2) the Felony Complaint Warrant, People v. Shady Kamal Elzoheiry and Andrew Nader Abas, Superior Court of California, County of Orange, Central Justice Center, Case No. OCDA RE21110003. Plaintiffs’ request for judicial notice is granted, but not as to the truth of the contents of those documents. (Evid. Code § 452(c), (d), and (h); Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.)

Statement of Law

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 [respondent only required to defeat allegations reasonably contained in the complaint].)

A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s

allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action “cannot be established” by submitting evidence—such as discovery admissions and responses—that the plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co. (1995) 25 Cal.4th at 854-55; see also Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; Scheiding v.

Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information]; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-42 [same].)

Once the moving party meets that burden, the burden shifts to the party opposing MSJ to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. (Id.; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) To meet this burden, the opposing party must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)

The moving party’s papers are to be strictly construed, while the opposing party’s papers are to be liberally construed. (Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)

Merits

Toorak seeks summary judgment on the FAC and the SACC. Toorak’s motion identifies three grounds on which it seeks summary judgment. Toorak frames these issues as follows:

Ground No. 1: As to the FAC, Plaintiffs’ Causes of Action/Claims Against Toorak for Cancellation of the Loans and Deeds of Trust for the 2019 1215 Dolphin Loan, 2020 1207 Dolphin Loan and 1972 Port Ramsgate Loan, And Consequential Declaratory Relief (Causes of Action Four and Five), Fail Because the Undisputed Evidence Establishes Shady Elzoheiry Was Appointed President of Diyar Irvine

LLC, and So Had Actual Authority to Enter Into the Loans on Diyar Irvine’s Behalf.

Ground #2: Alternatively As to The FAC, Plaintiffs’ Causes of Action/Claims Against Toorak for Cancellation of the Loans and Deeds of Trust for the 2019 1215 Dolphin Loan And 2020 1207 Dolphin Loan, And Consequential Declaratory Relief (Causes of Action Four and Five), Must Fail Because The Deeds Of Trust Have Been Reconveyed And So Are No Longer “Outstanding” And Are Incapable Of Causing Serious Injury, And Plaintiffs Do Not Plead That the Reconveyances Themselves Are Void or Voidable.

Ground #3: As to the SACC, All Three of Plaintiffs’ Causes of Action Against Toorak in the SACC for Slander Of Title Fail (Causes of Action One, Two and Three) Because: (i) Toorak Had No Knowledge Of the Alleged Falsity of Recorded Deeds of Trust and Assignments in Issue, Such That It Could Not Conspire to Commit an Alleged Tort and Did Not Have The Requisite Actual Malice to Be Liable For Slander of Title; and, (ii) Carlyle Capital, Inc. and Commercial Lender, LLC Were Not Agents of Toorak, Such That Toorak Cannot Be Held Liable For Their Alleged Torts.

The Court will address each of these arguments in turn.

Issue Number 1

Toorak contends that Shady Elzoheiry was appointed President of Diyar and thus had actual authority to enter into the Loans on Diyar’s behalf. Toorak points to a Resolution executed in September 2018 (the September 2018 Resolution). The Resolution is titled, “Authorizing Resolution of the Managers of Diyar Irvine, LLC” and states that all the Managers of Diyar hereby authorize Shady as President of the company to “take all actions, and to execute and deliver, any and all documents, instruments, entitlements, contracts, and agreements as may be necessary in connection with the Company’s activities.” The September 2018 Resolution is purportedly signed by Sadel El Sewedy and Ahmed El Sewedy. (Toorak’s Material Facts (TMF) 16-23; Exhibit 27.)

Plaintiffs provide evidence that Sadek’s signature on the September 2018 Resolution was forged and that he did not see or ratify the September 2018 Resolution. (Plaintiffs’ Material Fact (PMF) 80-83; 95-98; 108-112.) Sadek also provides evidence that he did not see or

respond to the emails containing that September 2018 Resolution. (Ibid.)

Still, Toorak insists that Sadek had actual knowledge of the September 2018 Resolution appointing Shady as president. Toorak points to facts leading up to the signing of the September 2018 Resolution, such as an email to Sadek containing an invoice showing that O’Neal had a call with Shady regarding a draft resolution to appoint Shady as CEO/President. (TMF 19-22.)

The invoice appears to be protected by the attorney client privilege. (Evid. Code § 952; Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 297.) However, even if the attorney client privilege did not apply, Toorak provides no evidence that Sadek saw this invoice. Instead, Plaintiffs provide evidence that neither Sadek nor Ahmed saw it. (PMF 108-110.) Plaintiffs also provide evidence that Sadek expressly prohibited Shady from obtaining loans on Diyar’s behalf. (PMF 91-92.)

Toorak contends the only reasonable inference is that Sadek had actual knowledge that Shady was appointed president of Diyar. However, even if Toorak met its initial burden of establishing this contention, Plaintiffs have met their shifted burden of providing evidence to create a triable issue of fact as to whether Sadek had actual knowledge that Shady was appointed president.

Toorak also contends that Sadek ratified the September 2018 Resolution. “[A] ratification, to be binding, must have been made with full knowledge of all the material facts.” (Promis v. Duke (1929) 208 Cal. 420, 427; see also Gallagher v. California Pacific Title & Trust Co. (1936) 13 Cal.App.2d 482, 493) However, Toorak does not provide evidence to establish that Sadek or Ahmed actually saw the executed September 2018 Resolution, the email to which the September 2018 Resolution was attached, or the invoice describing work on the September 2018 Resolution. (PMF 8-103; 112; 134.)

Thus, Toorak has not shown that Sadek had the knowledge requisite to establish ratification. That O’Neal may have been aware of the September 2018 Resolution does not establish that Sadek was aware of the same. (See, e.g., Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 316.) Further, Plaintiffs provide evidence that O’Neal did not have full knowledge of the relevant facts, such as the (disputed) fact that the signatures on the September 2018 Resolution were forged. (PAMF 99-101, 104-107.)

Plaintiffs have met their shifted burden of establishing a triable issue of material fact as to ground 1 in Toorak’s motion.

Issue Number 2

Toorak contends that Plaintiffs’ fourth and fifth causes of action for cancellation and declaratory relief fail because the Deeds of Trust have been reconveyed and are thus no longer “outstanding” or capable of causing serious injury.

Pursuant to Civil Code § 3412, “[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may upon his application, be so adjudged, and ordered to be delivered up or cancelled.” (Civ. Code § 3412.)

Toorak cites three cases in support of its claim that Plaintiffs’ cancellation claim is entirely negated by the reconveyances of the deeds of trust. Neither First Fidelity Thrift & Loan Ass'n v. Alliance Bank (1998) 60 Cal.App.4th 1433, 1442 nor Snider v. Basinger (1976) 61 Cal.App.3d 819, 823 involved a cancellation claim. The third case cited by Toorak, Hyatt v. Mabie (1994) 24 Cal.App.4th 541, is factually distinguishable, as it relates to community property rights and a spouse’s inability to set aside an encumbrance because the community had been dissolved before the wife knew of the encumbrance. (Id. at 545.) Further, Toorak does not meaningfully address the declaratory relief cause of action or the elements Plaintiffs must establish in order to prevail on such a claim.

Toorak has not met its initial burden of establishing that the fourth and fifth causes of action fail as a matter of law. Even if it had, Plaintiffs met their shifted burden of providing evidence to create a triable issue of fact that the reconveyances were part the fraudulent scheme involving allegedly forged documents and continuing with the reconveyances and subsequently recorded deeds of trust, and that these documents create. (Plaintiffs’ response to TMF 1-6; PMF 7- 10.)

Issue Number 3

Toorak contends that Plaintiffs’ claims in the SACC for slander of title fail because Plaintiffs’ allegations of conspiracy are unsupported and Toorak had no knowledge of the alleged falsity of recorded deeds of trust and assignments at issue. Toorak also contends that Carlyle and Commercial Lender were not agents of Toorak.

To support this contention, Toorak relies on the declaration of Stephen J. Tyde, Jr., the head of special servicing at Toorak. Tyde

states that Caryle and Commercial Lender have never been Toorak’s agent. For instance, he states, “There is no contract or agreement to establish such an agency relationship, there are no documents to establish such an agency relationship, there have been no written communications between Carlyle and Toorak, Toorak has not exercised any control over Carlyle, nor did it have any right to exercise such control, nor is there any course of conduct to establish such an agency relationship.” (Tyde Dec., ¶ 13.) However, Plaintiffs have met their shifted burden of providing evidence to create a triable issue of fact as to whether Carlyle and Commercial were Toorak’s agent. (Plaintiffs’ response to TMF 1-24.)

The motion is denied.

Moving parties shall give notice of this ruling.

Motions for Summary Judgment/Adjudication #2

Defendant and Cross-Defendant Loan Funder, LLC (Loan Funder) and Defendant, Cross-Defendant, and Cross-Complainant Athene Annuity and Life Company (Athene) also move for summary judgment/adjudication against Plaintiffs as to Plaintiffs’ FAC and Plaintiffs’ SACC. For the following reasons, the motion for summary judgment/adjudication is DENIED.

Evidentiary Objections

Both Plaintiffs and Toorak filed evidentiary objections. Plaintiffs’ objections to the declarations of Marsha Malozemova and Eric Abramovich are overruled. The remainder of objections are not material to the disposition of the motion. (Code Civ. Proc. § 437c(q).) Loan Funder and Athene’s evidentiary objections are overruled.

Request for Judicial Notice

Athene and Loan Funder ask the Court to take judicial notice of 8 documents: Plaintiffs’ Complaint, the February 24, 2022 Amendment to Complaint, the September 3, 2020 Deed of Trust, the February 1, 2021 Deed of Trust, the Complaint in 1202 Bayside, LLC v. Kaz Investments Management, Inc.; Diyar Irvine, LLC et al. (Case No. 30-2017-00952720-CU-OR-CJC), the FAC filed in this matter, the SACC filed in this matter, and the January 3, 2022 Assignment of Deed of Trust.

The request for judicial notice is granted, but not as to the truth of the contents of those documents. (Evid. Code § 452(c), (d), and (h); Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.)

Plaintiffs ask the Court to take judicial notice of the Stipulated Final Judgment and Order for Permanent Injunction and Equitable Relief, Federal Trade Commission v. American Consulting Group, LLC, et al., United States District Court, Central District of California, Southern Division, Case No. SACV12-01561 DOC (JPRx), filed on September 18, 2013, and 2) the Felony Complaint Warrant, People v. Shady Kamal Elzoheiry and Andrew Nader Abas, Superior Court of California, County of Orange, Central Justice Center, Case No. OCDA RE21110003. The request for judicial notice is granted, but not as to the truth of the contents of those documents. (Evid. Code § 452(c), (d), and (h); Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.)

Statement of Law

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. (“CCP”), § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 [respondent only required to defeat allegations reasonably contained in the complaint].)

A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action “cannot be established” by submitting evidence—such as discovery admissions and responses—that the plaintiff does not have and cannot reasonably obtain evidence to

establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co. (1995) 25 Cal.4th at 854-55; see also Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information]; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-42 [same].)

Once the moving party meets that burden, the burden shifts to the party opposing MSJ to show, by reference to specific facts, the existence of a triable issue as to that affirmative defense or cause of action. (Id.; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) To meet this burden, the opposing party must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)

The moving party’s papers are to be strictly construed, while the opposing party’s papers are to be liberally construed. (Committee to Save Beverly Highland Homes Ass’n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)

Merits

Athene and Loan Funder’s motion identifies three grounds on which it seeks summary judgment.

Ground No. 1: Plaintiffs’ Claims Against Defendants for Cancellation of Diyar’s 2020 and 2021 Loans/Liens on Diyar’s Dolphin Properties, and the 2020 Loan/Lien on Green City’s Ocean Property Fail Because Shady Elzoheiry had Actual Authority, Based on Acquiescence and Ratification, to Enter Into the Loans/Liens on behalf of Diyar and Green City.

Ground #2: Plaintiffs’ Slander of Title Claims against Athene fail because Athene: did not publish anything as to Plaintiffs’ Properties; did not publish anything false and defamatory; did not cause Plaintiffs any special pecuniary loss to Plaintiffs by any publication; and did not publish anything with malicious intent.

Ground #3: Plaintiffs’ Slander of Title Claims against Loan Funder fail because Loan Funder: did not publish anything as to the 1207 Dolphin Property or the Ocean Property; its Sole Recorded Document, an Assignment as to the 1215 Dolphin Property, is not false or defamatory, and is privileged; did not cause special pecuniary loss to Plaintiffs by any publication; and did not publish anything with malicious intent.

Issue Number 1

Athene and Loan Funder contend that Shady had actual authority, based on acquiescence and ratification, to enter into the loans/liens on behalf of Diyar and Green City. The Court has already discussed this argument at length in connection with Toorak’s motion. That discussion largely applies to Athene and Loan Funder’s argument on this issue. Athene and Loan Funder contend that Plaintiffs had constructive knowledge of the 2018 Resolution, but the law requires that a principal have full knowledge in order to establish ratification.

Loan Funder and Athene have not established sufficient facts to show that Plaintiffs’ “ignorance of the facts arises from the principal’s own failure to investigate and the circumstances are such as to put a reasonable man on inquiry.” (Reusche v. California Pacific Title Ins. Co. (1965) 231 Cal.App.2d 731, 737.) As discussed in connection with Toorak’s motion, Plaintiffs have met their shifted burden of establishing a triable issue of material fact as to ground 1. (PMF 52, 60, 70-110, 125-140; 148-10.)

Issue Numbers 2 and 3

Under California law, a claim for slander of title has four elements: (1) “a publication;” (2) “which is without privilege or justification and thus with malice, express or implied;” (3) “is false, either knowingly so or made without regard to its truthfulness;” and (4) “causes direct and immediate pecuniary loss.” (Howard v. Schaniel (1980) 113 Cal. App. 3d 256, 263; Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal. App. 4th 1040, 1051.)

“Ordinarily, the question of agency is one of fact; however, where the evidence is undisputed the issue becomes one of law.” (Magnecomp Corp. v. Athene Co. (1989) 209 Cal.App.3d 526, 536; see Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 642, fn. 19 [agency is generally a question of fact, but the issue may be decided as a matter of law if the undisputed facts negate any such relationship]; Harley-Davidson, Inc. v. Franchise Tax Bd. (2015) 237

Cal.App.4th 193, 214 [existence of agency is question of fact unless evidence is susceptible of only one inference].)

Athene and Loan Funder contend that Plaintiffs’ slander of title claims fail because they did not publish anything as to Plaintiffs’ properties, they did not publish anything false and defamatory, they did not cause any special pecuniary loss to Plaintiffs by any publication, and they did not publish anything with malicious intent.

Plaintiffs have provided evidence to create a triable issue of whether Carlyle was Loan Funder’s Agent. (PMF 156-193.) They have also provided evidence to create a triable issue regarding the remaining elements of the slander of title cause of action, including whether the deeds of trust assigned to Athene and Loan Funder were published with malice and without privilege. (PMF 119-156-193.)

Moving parties shall give notice of this ruling.

12 White v. TENTATIVE RULING: Walmart, Inc. Demurrer and Motion to Strike

Defendant Walmart Inc. demurs to and moves to strike portions of the Complaint filed by Plaintiff Robbie D. White. For the following reasons, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. The motion to strike is rendered moot by the ruling on the demurrer.

Analysis

1) Compliance with Code of Civil Procedure Section 430.41

A party demurring or moving to strike a pleading is required to meet and confer “in person or by telephone” with the party that filed the pleading under Section 430.41. (Code Civ. Proc. § 430.41.) Here, MP’s counsel satisfied this requirement. (Axsom Dec.)

2) General Principles

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it