Demurrer to Complaint; Motion to Strike Complaint
further delay will impair his ability to attend trial, testify before a jury, assist counsel, and fully present his claim. (Minich Decl., ¶ 12.)
JCK Computing opposes the motion and argues that Minich’s conditions are largely longstanding and that neither his declaration nor the medical records establish that an ordinary trial schedule would impair his ability to participate in the litigation. JCK notes that Minich has participated in discovery and does not claim any cognitive impairment affecting his ability to communicate. JCK also contends that an expedited trial would prejudice its ability to complete outstanding depositions, medical discovery, an independent medical examination of Buford, and expert preparation. (Cook Decl., ¶¶ 2–3.)
However, Minich’s declaration and medical records show recent surgeries, hospitalization, progressive shortness of breath, exhaustion after minimal exertion, inability to drive, and other functional limitations that may impair his ability to attend and participate meaningfully in a later trial. (Minich Decl., ¶¶ 5– 12, Ex. A.) His prior participation in discovery does not establish that he will remain able to participate after further delay.
The record therefore establishes that Minich’s health makes preference necessary to prevent prejudice to his interest in the litigation. Because Minich satisfies section 36(a), preference is mandatory, and the court may not balance JCK’s discovery and trial-preparation interests against Minich’s statutory right to preference. (Fox v. Superior Court, supra, 21 Cal.App.5th at p. 535.) In any event, the record indicates that JCK has conducted substantial discovery and had opportunities to pursue the remaining discovery. (Rodenhuis Decl., ¶¶ 4–10; Rodenhuis Supp. Decl. ¶¶ 7-10.)
Plaintiffs did not submit the declaration concerning service or appearance contemplated by section 36(c)(1). Nevertheless, the court’s records establish that all essential parties have been served and have appeared. The court therefore dispenses with the separate declaration pursuant to section 36(c)(1).
Therefore, the motion is GRANTED. Trial is scheduled on 11/19/2026 at 8:30am in Department C16.
Plaintiffs are ordered to give notice.
51 Chocolate Bash the Outlets at Orange LLC vs. Orange City Mills Limited Partnership
26-01544712 1. Demurrer to Complaint 2. Motion to Strike Complaint
Defendant Orange City Mills Limited Partnership’s Demurrer to Complaint is SUSTAINED as to the third cause of action for unjust enrichment and the claim referenced as “Implied Warranty & Good Faith and Fair Dealing”. Should Plaintiff wish to amend, the amended pleading must be filed within 20 days of notice of this ruling.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
As to the second cause of action for fraud the Demurrer is OVERRULED for the following reasons:
The elements of fraud are: “(a) [a] misrepresentation (false representation or promise, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Sup. Court (1996) 12 Cal.4th 631, 638-639; Muraoka v. Budget Rent-A-Car, Inc. (1984) 160 Cal.App.3d 107, 119.)
“A promise made without any intention of performing it constitutes fraud.” (Union Flower Market v. Southern Cal. Flower Market (1938) 10 Cal.2d 671, 676). “Thus, in a promissory fraud action, to sufficiently allege defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060).
Fraud must be pleaded with specificity. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.) But with regard to intent, “the falsity of [a] promise is sufficiently pled with a general allegation the promise was made without intention of performance.” (Beckwith, supra, 205 Cal.App.4th at 1060)
The Complaint alleges that on 8/6/25, the parties entered into a Lease Agreement for commercial space located at The Outlets at Orange. (Complaint ¶¶ 8-9.) On 11/18/25, Plaintiff emailed Defendant’s agents that Plaintiff had been experiencing significant and costly delays with the City of Orange in obtaining permits because of newly discovered pre-existing and unforeseen damage to the interior portion and structure of Premises walls. (Id. at ¶ 10.) Although the Lease states the Premises is leased “as is,” Plaintiff contends that the Lease consists only of the leased space and not the interior/structure of the walls. (Id. at ¶¶ 11-13.)
Plaintiff requested Defendants provide rent relief while Plaintiff attempted to mitigate the damage. (Id. ¶ 14.) Plaintiff’s counsel then wrote a letter to Defendant reminding Defendant of their obligations under the Lease. (Id. at ¶ 15.) Defendant has ignored Plaintiff’s request. (Id. at ¶¶ 15, 16 [sic].).) Plaintiff spent an amount greater than $50,000 on repairs and a loss of profits due to the inability to open the business in a timely manner. (Id. at ¶ 16.)
The Complaint then alleges Defendant made the promise to Plaintiff in the Lease without any intention of performing the portions of the Lease that said Defendant retained exclusive control over pipes, all structures inside the walls and the structural portion of the walls inside the Premises. (Id. at ¶¶ 26, 27.) The promises in the Lease were made by Defendant with the intent to induce Plaintiff into entering into the Lease. (Id. at ¶ 28.) At the time the Lease was entered into, Plaintiff could not have discovered the pre-existing structural defects. (Id. at ¶ 29.) Plaintiff relied on the Lease. Plaintiff contacted Defendant, Defendant failed to respond, and as a result, Plaintiff has been damaged. (Id. ¶¶ 30-33.)
The second cause of action has been sufficiently pled to OVERRULE the demurrer on this cause of action.
The demurrer is SUSTAINED as to the third cause of action for the following reasons:
Unjust enrichment is a remedy akin to restitution, not a separate cognizable cause of action. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231; Hill v. Roll Intern. Corp. (2011) 195 Cal.App.4th 1295, 1307; Levine v. Blue Shield of Calif. (2010) 189 Cal.App.4th 1117, 1138; Durell v. Sharp
Healthcare (2010) 183 Cal.App.4th 1350, 1370; Melchior v. New Line Productions, Inc. (2003) 106 Cal. App. 4th 779, 793.)
The Fourth District, Division 3, explained in Munoz v. MacMillan (2011) 195 Cal.App.4th 648: “There is no freestanding cause of action for ‘restitution’ in California. [Citation omitted.] Common law principles of restitution require a party to return a benefit when the retention of such benefit would unjustly enrich the recipient; a typical cause of action involving such remedy is ‘quasi-contract.’” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661.) Thus, there must be a valid cause of action on which to support the remedy of restitution or unjust enrichment. (See Rutherford, supra, 223 Cal.App.4th 221, 231 [construing the unjust enrichment claim to be a cause of action for quasi-contract claim seeking restitution].)
A party to an express contract may assert a claim for restitution based on unjust enrichment by “alleg[ing in that cause of action] that the express contract is void or was rescinded.” [Citation.] A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of an enforceable agreement. (Rutherford Holdings, LLC v. Plaza Del Rey, supra, 223 Cal.App.4th at p. 231, internal citations omitted, bold added.)
Thus, while a Complaint may plead the alternative of both breach of contract and restitution based on a quasi-contract, to sufficiently plead unjust enrichment/restitution, a complaint must allege that the express contract is void or was rescinded. Here, the Complaint contains no such allegation. Thus, the demurrer on this ground is SUSTAINED with leave to amend.
Lastly, Defendant demurs to the unnumbered cause of action for “implied warranty of good faith and fair dealing.”
The demurrer to this cause of action is SUSTAINED as Plaintiff has failed to plead any facts to support the cause of action and fails to comply with Rules of Court, Rule 2.112.
Defendant to give notice.
__________________________________________________________________
Defendant moves to strike the prayer for punitive damages from the Complaint. But on 7/7/26, Plaintiff filed a request to dismiss the claim for punitive damages, which was entered on the same date. (ROA 49.) Thus, the instant motion is DENIED AS MOOT. Plaintiff has already dismissed punitive damages from the Complaint.
52 Shaffer vs. Hussein
26-01542357 Motion for Leave to File Cross Complaint
Defendant Syed Zakir Hussain’s (Erroneously sued as Syed Zakir Hussein) unopposed motion for leave to file a cross-complaint is GRANTED. (Code of Civ. Proc. § 426.50.)