The Retail Property Trust vs. Burning Mouth, LLC

TENTATIVE RULINGS

LAW & MOTION

DEPT C25

Judge Gassia Apkarian

The court will hear oral argument on all matters at the time not iced for the hearing, unless the Court has stated that the matter is off calendar. Do not call the department to verify if you should appear or not. Please read below for the information. If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first to find out if all parties are submitting, and then the moving party is to telephone the clerk at (657)622-5225 with the status of all parties. If the moving party has submitted on the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 12:00 p.m. the day before the hearing. Generally, motions will not be continued or tak en off the calendar after the tentative has been posted. The moving party shall give notice of the ruling.

September 09, 2026 10:00 AM

If you want a transcript, you must provide your own court reporter.

# Case Name Tentative 101 The Retail Property Trust vs. Burning Mouth, LLC

24-01430383 1. Demurrer to Cross-Complaint 2. Motion to Strike Portions of Cross-Complaint Plaintiff/Cross-Defendant The Retail Property Trust seeks an order sustaining the Second Amended Cross- Complaint filed by Defendants/Cross Complainants John Kang and Kye Kim, on the following grounds: 1. The 1st c/a fails to state facts sufficient to constitute a cause of action for breach of contract (CCP§ 430.10(e)); 2. The 1st c/a is uncertain (CCP§430.10(f)). 3.The 2nd c/a fails to state facts sufficient to constitute a cause of action for fraud (CCP§430.10(e)); 4. The 2nd c/a is uncertain (CCP§430.10(f))

5. The 3rd c/a fails to allege facts sufficient to constitute a cause of action for negligence (CCP§430.10(e)).

6. The 3rd c/a is uncertain (CCP§430.10(f)) Demurrer is overruled as to the 1st and 3rd causes of action. CCP§430.41(b). Demurrer is sustained without leave to amend as to the 2nd cause of action for fraud based on failure to state facts sufficient to constitute a cause of action.

The elements of fraud, which give rise to the tort action for deceit, are (1) misrepresentation (false representation, concealment, or nondisclosure), (2) knowledge of falsity (or “scienter”), (3) intent to defraud (i.e., to induce reliance), (4) justifiable reliance, and (5) resulting damage. In this state, fraud must be pled specifically; general and conclusory allegations do not suffice. The policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered.

A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Lazar v. Superior Court (1996) 12 Cal.4th 631, 632.]

Here, the fraud cause of action is based on two discrete matters: 1) concealing from the lease negotiations the fact that a portion of the mall would be closing and 2) promising in the lease negotiations that tenants could sell donuts and then not allow them to do so. Cross-Complainants now pleads an inability to name representatives, agents, employees due to lack of discovery responses. (SAXC¶13). They also plead approximately ten (10) named agents may have been involved. (See SAXC¶15.) This does not suffice. The fraud allegations arise from the lease negotiations. What was said and not said. Cross-Complainants, or their agents, were privy to those communications or lack thereof. As such, they should be in a position to provide the required level of specificity necessary to support the concealment claim and false promise claim. They fail to do so.

To the extent the Motion to Strike punitive damages language is not rendered moot by this ruling, it is GRANTED without leave to amend. Cross-Defendant to give notice and file an answer to the SAXC within 15 days.

102 Abelardo Gutierrez vs. HOAG Memorial Hospital Presbyterian

25-01509741 1. Demurrer to First Amended Complaint 2. Motion to Strike Portions Of First Amended Complaint 3. Case Management Conference Demurrer Defendant, Hoag Memorial Hospital Presbyterian (“Defendant”), demurs to the first cause of action for harassment and third cause of action for retaliation of Plaintiff, Hector Abelardo Gutierrez’s First Amended Complaint. The demurrer is OVERRULED.

Timeliness Plaintiff contends that the demurrer and motion to strike were not timely filed because Defendant’s counsel’s declaration in support of a 30-day extension does not establish a reasonable and good-faith effort to meet and confer.