Kevin Coluccio et al v. Thomas Trainor et al

Civ. Proc., § 430.30, subd. (a).) Because “[a] demurrer tests only the legal sufficiency of the pleading . . . the question of plaintiff’s ability to prove the [] allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Comm. on Children’s Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-14.)

C. DISCUSSION

Shamrock argues that Trainor’s claims in the FACC against it fail because each requires Shamrock to be a concurrent tortfeasor, but the economic loss rule bars any claims against 1 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

Shamrock under any theory of tort. (Mem., 5:15-18, citing American Motorcycle Assn. v. Sup. Ct. (1978) 20 Cal.3d 578, 598 [holding that common-law equitable indemnity doctrine permits partial indemnity among concurrent tort-feasors on comparative fault basis].)

Under the economic loss rule, “[c]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.” (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1231; see also Mem., 6:21-7:20.) In the product liability context, “the economic loss rule allows a plaintiff to recover in strict products liability in tort when a product defect causes damage to ‘other property,’ that is, property other than the product itself. The law of contractual warranty governs damage to the product itself.” (Jimenez v. Sup. Ct. (2002) 29 Cal.4th 473, 483; see also Mem., 6:12-15.)

1. Parties’ Contentions

Here, Shamrock argues that the nature of the loss alleged by Trainor in the FACC arises out of Shamrock’s supply of nonconforming goods (concrete), which is not independent from Shamrock’s contractual obligation, and which is not alleged to have caused damage to other property other than the concrete itself. (Mem., 5:24-26, 7:21-27.) This, Shamrock contends, is confirmed by a review of Plaintiff’s Second Amended Complaint, filed June 12, 2026 (“SAC”), upon which Shamrock’s allegedly joint liability in the FACC is based.

Specifically, Shamrock argues, the only allegations in the SAC that can be extended to Shamrock concern Shamrock’s supply of concrete and do not allege facts regarding personal injury or damage to property other than the concrete itself. (Mem., 5:24-6:11.) Rather, Shamrock contends, the allegations concerning other project defects are only the result of the manner and method in which the concrete was poured, which is outside the scope of Shamrock’s work. (Ibid.)

In Opposition, Trainor argues that there are damages alleged in the SAC, which arise from a violation of Shamrock’s duty outside of, and independent from, Shamrock’s contract to provide non-defective concrete. (Opp., 3:12-4:5, citing SAC, ¶¶ 43, 52, 59.) Moreover, Trainor argues that there are allegations of property damage other than the concrete itself which damage resulted from the defective concrete. (Opp., 4:6-28.) Specifically, Trainor points to Plaintiffs’ SAC, Paragraphs 56 and 67(k)-(l), which it contends allege that, as a result of the defective concrete, the residence suffers from water intrusion, there are several leaks, various walls and alcoves are out of plumbing, and a window ledge required concrete grinding and destroyed the finished surface. (Opp., 4:6-20.)

In Reply, Shamrock argues that Trainor inaccurately asserts the SAC alleges that the project defects other than the concrete itself are a result of the allegedly defective concrete. Rather, Shamrock argues that the “overwhelming majority” of the project defects alleged in the SAC “concern the means and methods used during construction and not the condition of the concrete supplied by Shamrock.” (Reply, 4:9-16.) Moreover, Shamrock argues that there must be a causal connection between the alleged product defect and the claimed damage to the property. (Reply, 6:23-7:6.)

2. Court’s Analysis

The Court is not entirely persuaded that the SAC alleges damages arising from a violation of Shamrock’s duty outside of, and independent from, Shamrock’s contract to provide nondefective concrete, as Trainor would have the Court find. Indeed, Trainor merely argues that, not only are there allegations that Shamrock failed to provide non-defective concrete, but there are allegations that the concrete was defective. (Opp., 3:15-17, 4:1-3.) This makes little sense, and does not show that Shamrock’s conduct violated anything outside of the contract. Moreover, the FACC clearly pleads that Shamrock was hired to provide materials for the concrete for the Project and that the SAC alleges defects with the concrete supplied. (FACC, ¶ 12.)

However, the Court need not reach a determination on that point because it finds that the exception to the economic loss rule discussed in Jimenez—that the SAC alleges property damage other than the concrete itself, which damage possibly resulted from the defective concrete— applies, and that the FACC clearly alleges that connection. (See SAC, ¶¶ 59, 67(k)-(l); FACC, ¶¶ 20 [“The damages alleged in Plaintiffs’ Complaint were the direct and proximate result of the conduct of the Cross-Defendants, and each of them. However, if as a result of the allegations in Plaintiffs’ Complaint, the Cross-Complainant is held liable for all or any part of the damages alleged by Plaintiffs, Cross-Complainant is thereby entitled to indemnity by Cross-Defendants, and each of them, on a theory of indemnity, in that the negligence or legal fault referred to in Plaintiffs’ Complaint resulted from the sole and primary negligence or legal fault of Cross- Defendants, and each of them.”].)

The premise advanced by Shamrock—that the SAC’s allegations concerning other project defects are only the result of Trainor’s and others’ manner and method in which the concrete was poured and not as a result of the concrete itself—is not abundantly clear from the face of the SAC. While certain of the property defects are alleged in the SAC with specific reference to the cause being the construction work (as opposed to the concrete itself), not all defects are so clearly alleged. For example, it is not so clear to the Court that the damage alleged in Paragraph 67(k) and (l) is expressly not due to the defective concrete.

Nor is the Court able to make any inferences to that effect in Shamrock’s favor on a demurrer. (Cundiff, supra, 101 Cal.App.4th at 1405.) Moreover, the SAC’s cause of action against Shamrock alleges damages from Shamrock’s supply of concrete “to the main structural and aesthetic components of the structure, causing damage to the building overall in the form of leaks, holes, and walls being out of plumb.” (See SAC ¶ 84. Emphasis added.) Thus, the Court finds that there are allegations to support a possible tort theory of recovery against Shamrock.

Whether or not Trainor will be able to prove those allegations is not presently before the Court on demurrer.

Based on the foregoing, the Court does not find that the economic loss rule bars Trainor’s claims against Shamrock in the FACC.

As a final matter, although Shamrock’s Memorandum cites uncertainty as a ground for its demurrer, Shamrock fails to specify in what particulars the FACC is uncertain. “Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of Univ. of Cal. (2002) 29 Cal.4th

300, 328, fn. 30.) Moreover, a demurrer for uncertainty is disfavored and may only be sustained where the allegations render the complaint so incomprehensible that a defendant cannot reasonably respond. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) The Court finds the FACC to be entirely comprehensible such that Shamrock can reasonably respond.

Based on the foregoing, the demurrer is OVERRULED.

Firefly Health Corp v. Trulieve Inc. et al 26CV000476

DEFENDANTS MOTION TO COMPEL ARBITRATION

TENTATIVE RULING: The motion is GRANTED. Plaintiff is ordered to refer its claims to arbitration pursuant to the Stock Purchase Agreement alleged in the operative complaint. The matter is STAYED pending resolution of said arbitration. The Court vacates the August 11, 2026 Case Management Conference and sets the matter for a Status Conference re: Arbitration on December 9, 2026, at 8:30 a.m. in Dept. A.

A. PRELIMINARY MATTERS

1. Nature of the Motion

Defendants Trulieve Inc. (Trulieve), a Florida corporation, Harvest of California, LLC (Harvest), a California limited liability company, and Trulieve CA, Inc. (Trulieve CA), a California corporation (collectively Defendants) move, pursuant to Code of Civil Procedure sections 1281.2 and 1281.4, or in the alternative, the Federal Arbitration Act, 9 U.S.C. section 1 et seq., for an order compelling Plaintiff Firefly Health Corp. to arbitrate the claims asserted against Defendants in this action.

2. Nature of the Action

Through the Operative Amendment to the Complaint (FAC)2, Plaintiff identifies itself as “FIREFLY HEALTH CORP., a California corporation doing business as VELVET CANNABIS (‘Velvet’ or ‘Plaintiff’) . . ..” (Id. a 1:21-22.) As Plaintiff couches the matter, “[t]his Complaint arises out of the acquisition of the Napa cannabis dispensary business (‘the Napa Dispensary’) from Trulieve Inc., by Velvet on or about March 31, 2023 (the ‘Transaction’), pursuant to a Stock Purchase Agreement dated March 31, 2023 (the ‘SPA’).” (FAC at ¶ 1.) The gravamen of the FAC is that Defendants are liable for damages Plaintiff allegedly suffered as a result of an employment discrimination / wrongful termination suit by a former employee of Defendants, Bianca Viscusi (Viscusi), who Plaintiff elected not to hire after the Transaction was consummated.

2 While the operative pleading is captioned an “Amendment to Complaint” it appears to be a fully contained amended pleading.

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