AUSSIEKER vs GRAHAM, et al.

24CV013995: AUSSIEKER vs GRAHAM, et al. 10/08/2025 Hearing on Demurrer to the First Amended Complaint in Department 54

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard in Department 28, located at 720 9th Street, Sacramento, CA, the Hon. Richard C. Miadich presiding.

Any party who wishes to contest the tentative ruling below must:

(1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and

(2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court.

If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/my/sscdept28

SIP Address:

16039062174@sip.zoomgov.com

(833) 568-8864

ID: 16039062174

24CV013995: AUSSIEKER vs GRAHAM, et al. 10/08/2025 Hearing on Demurrer to the First Amended Complaint in Department 54

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Defendant Adam Chandler’s (“Chandler”) demurrer to Plaintiff Mark Aussieker’s (“Plaintiff”) First Amended Complaint (“FAC”) is OVERRULED, as follows.

This action arises out of the alleged telemarking calls Defendants placed to a telephone number Plaintiff registered on the national Do Not Call Registry. Plaintiff names as defendants in the FAC Javed Graham and Chandler, an individual dba Discover Solar. The FAC alleges causes of action for violation of the Telephone Consumer Protection Act, 47 C.F.R § 64.1200(d) (Telemarketing without Mandated Safeguards), Penal Code § 631, and Penal Code § 632.

Chandler demurs to the FAC in its entirety on the basis that the FAC “fails to state facts sufficient to constitute a cause of action against [him] individually” because the alleged conduct “was solely undertaken by Solar Market Makers LLC, a Colorado limited liability company that has since been formally dissolved.” (Demurrer at p. 1.) Chandler submits a declaration in support of his demurrer,[1] in which he avers that “[a]ny work [he] performed related to sales, marketing, training, or implementation of automation or

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013995: AUSSIEKER vs GRAHAM, et al. 10/08/2025 Hearing on Demurrer to the First Amended Complaint in Department 54

artificial intelligence tools was done solely within the scope of [his] duties as a managing member of Solar Market Makers LLC and on behalf of the company.” (Chandler Decl. ¶ 5.)

The role of a demurrer is limited “- to test the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer can be used only to challenge defects that appear on the face of a pleading under attack; or from matters outside the pleading that are judicially noticeable.” (Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2025 Update) ¶ 7:8 [citing cases].) “In reviewing . . . a demurrer, a court cannot consider . . . the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.” (Donabedian, supra, 116 Cal.App.4th at p. 994.)

Here, Chandler’s demurrer is premised solely upon his declaration. He does not challenge the sufficiency of Plaintiff’s allegations in the FAC. As stated above, the Court cannot consider the substance of a declaration in ruling on a demurrer.

For the stated reasons, Chandler’s demurrer is overruled. Chandler shall file an answer to the FAC no later than October 20, 2025.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)

[1] The Court notes that the Chandler Declaration references two exhibits and represents that they are attached thereto. (Chandler Decl. ¶¶ 1, 2.) The Declaration filed with the Court does not include the referenced exhibits.