On 02/27/2019 CHRISTIAN HERRERA filed a Contract - Other Contract lawsuit against BRANDI MACOUZET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JAMES E. BLANCARTE
CHRISTIAN HERRERA DBA ELITE DESIGN PROS
HERRERA CHRISTIAN DBA ELITE DESIGN PROS
MAC J WEB
MACOUZET BRANDI DBA MAC J WEB
DAVALOS BRIAN KENNETH
5/7/2019: Summons - Summons on Cross Complaint
5/7/2019: Amended Complaint - Amended Complaint
5/7/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
4/9/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service
4/29/2019: Cross-Complaint - Cross-Complaint
4/29/2019: Answer - Answer
4/29/2019: Summons - Summons on Complaint
4/29/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
2/27/2019: Summons - Summons on Complaint
2/27/2019: Complaint - Complaint
2/27/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
2/27/2019: First Amended Standing Order - First Amended Standing Order
2/27/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
Updated -- Amended Complaint First Amended Cross-Complaint: Name Extension: First Amended Cross-Complaint; As To Parties changed from Christian Herrera dba Elite Design Pros (Cross-Defendant) to Christian Herrera dba Elite Design Pros (Cross-Defendant)Read MoreRead Less
Address for Brian Kenneth Davalos (Attorney) updatedRead MoreRead Less
Civil Case Cover Sheet; Filed by: Brandi Macouzet (Cross-Complainant)Read MoreRead Less
Amended Complaint; Filed by: Brandi Macouzet (Cross-Complainant); As to: Christian Herrera dba Elite Design Pros (Cross-Defendant)Read MoreRead Less
Summons on Cross Complaint; Issued and Filed by: Brandi Macouzet (Cross-Complainant); As to: Christian Herrera dba Elite Design Pros (Cross-Defendant)Read MoreRead Less
Amended Cross-Complaint 1st; Filed by: Brandi Macouzet (Cross-Complainant); As to: Christian Herrera (Cross-Defendant)Read MoreRead Less
Answer; Filed by: Brandi Macouzet (Defendant); As to: Christian Herrera (Plaintiff)Read MoreRead Less
Summons on Complaint; Issued and Filed by: Brandi Macouzet (Defendant); As to: Christian Herrera (Plaintiff)Read MoreRead Less
Civil Case Cover Sheet; Filed by: Brandi Macouzet (Defendant)Read MoreRead Less
Cross-Complaint; Filed by: Brandi Macouzet (Cross-Complainant); As to: Christian Herrera (Cross-Defendant); Christian Herrera dba Elite Design Pros (Cross-Defendant)Read MoreRead Less
Proof of Service by Substituted Service; Filed by: Christian Herrera (Plaintiff); As to: Brandi Macouzet (Defendant); Mac J Web (Defendant); Proof of Mailing Date: 03/13/2019; Service Cost: 185.00; Service Cost Waived: NoRead MoreRead Less
Non-Jury Trial scheduled for 08/26/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
Order to Show Cause Re: Failure to File Proof of Service scheduled for 03/02/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
Case assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk CourthouseRead MoreRead Less
Complaint; Filed by: Christian Herrera (Plaintiff); As to: Brandi Macouzet (Defendant); Mac J Web (Defendant)Read MoreRead Less
Civil Case Cover Sheet; Filed by: Christian Herrera (Plaintiff); As to: Brandi Macouzet (Defendant); Mac J Web (Defendant)Read MoreRead Less
Summons on Complaint; Issued and Filed by: Christian Herrera (Plaintiff); As to: Brandi Macouzet (Defendant); Mac J Web (Defendant)Read MoreRead Less
Notice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
First Amended Standing Order; Filed by: ClerkRead MoreRead Less
Case Number: 19STLC02134 Hearing Date: July 01, 2020 Dept: 51
This lawsuit arises out of a dispute between Plaintiff/Cross-Defendant Christian Herrera (“Herrera”) d/b/a Elite Design Pros and Defendant/Cross-Complainant Brandi Macouzet (“Macouzet”) d/b/a Mac J Web from their business agreements for website design and management. Herrera brought the original suit against Macouzet for failing to split profits owed to him, and Macouzet filed the instant cross-complaint alleging breach of contract and unfair business practices by diverting her clients and business to himself.
On April 29, 2019, Macouzet filed the original cross-complaint, and on December 26, 2019, the instant Second Amended Cross-Complaint (“SACC”) against Herrera for the following causes of action:
(1) Breach of Contract; and
(2) Unfair Business Practices.
On March 6 and March 10, 2020, Herrera filed the instant Demurrer with Motion to Strike the second cause of action in the SACC.
The Court considered the moving, opposition, and reply papers and rules as follows.
A demurrer tests the sufficiency of the pleading at issue as a matter of law. City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719. A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP § 430.10(e). The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 (“On demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”) However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.
If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.
Second Cause of Action: Unfair Business Practices (Bus. & Prof. Code § 17200, et seq.)
Business and Professions Code section 17200 et seq. (“UCL”) prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range of conduct. It embraces “ ‘ “ ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ” ' [Citations.]” Cel–Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.
The UCL prohibits “unfair competition,” which it defines as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the FAL].” § 17200. “The UCL's purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.” Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949. “In service of that purpose, the Legislature framed the UCL's substantive provisions in ‘ “broad, sweeping language” ’ [citations] and provided ‘courts with broad equitable powers to remedy violations’ [citation].” Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320.
Here, Macouzet alleges that Herrera engaged in unfair business practices under the UCL because Herrera deliberately approached Macouzet to gain access to her book of business, contact her clients, and divert the business to himself. Compl., ¶¶ 111-116.
Herrera demurs to this claim on the grounds that Herrera’s conduct is not likely to deceive the public at large and an unfair business proscribed by the UCL does not extend to allegations that do not involve consumers at a corporate level but only pleads breach between individuals.
“Unlike ‘unlawfulness,’ ‘unfairness’ is an equitable concept that cannot be mechanistically determined under the relatively rigid legal rules applicable to the sustaining or overruling of a demurrer. As Justice Kaus explained, ‘the determination of whether a particular business practice is unfair necessarily involves an examination of its impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim—a weighing process quite similar to the one enjoined on us by the law of nuisance. [Citations.] While this process is complicated enough after a hearing in which the defendant has revealed the factors determining the utility of his conduct, it is really quite impossible if only the plaintiff has been heard from, as is the case when it is sought to decide the issue of unfairness [under the UCL] on demurrer. Therefore—since the complaint is unlikely to reveal defendant's justification—if that pleading states a prima facie case of harm, having its genesis in an apparently unfair business practice, the defendant should be made to present its side of the story. If, as will often be the case, the utility of the conduct clearly justifies the practice, no more than a simple motion for summary judgment would be called for.’ Motors, Inc. v. Times Mirror Co. Saunders v. Superior Court People v. McKale Schnall v. Hertz Corp.
Upon review, the Court finds that Macouzet has stated sufficient facts to establish an unfair business practice claim. Macouzet alleges that “Herrera has failed to perform many of his agreed-upon services toward Macouzet’s business and has further diverted Macouzet’s business opportunities for himself by contacting Macouzet’s clients, without her knowledge or consent, and has successfully solicited the business of those clients for himself.” Compl., ¶ 109. As explained above, the UCL’s scope is broad enough to govern all anti-competitive business practices as well as injuries to consumers and has as a major purpose “the preservation of fair business competition.” Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 113. The Court finds that Macouzet sufficiently alleges Herrera’s conduct in such nature. Rather, Herrera fails to present case law supporting that unfair business claims are only limited to harms against consumers and do not extend to injuries between parties in a contract.
In fact, “a breach of contract may ... form the predicate for Section 17200 claims, provided it also constitutes conduct that is ‘unlawful, or unfair, or fraudulent.’ ” Puentes v. Wells Fargo Home Mortgage, Inc. (2008) 160 Cal.App.4th 638, 645. Weighing the utility of the defendant’s conduct against the gravity of the harm to the alleged victim, the Court finds that Macouzet’s allegations state a prima facie case of harm having its genesis in an unfair business practice. Schnall, supra, 78 Cal.App.4th at p. 1167. This is at least a question of fact not adequate for determination on demurrer.
Accordingly, Herrera’s Demurrer to the Second Cause of Action is OVERRULED.
Motion to Strike Standard:
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). It may be an abuse of discretion to deny leave to amend after granting a motion to strike a complaint if the defect is curable. CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.
Borrowing from the law governing demurrers, if a motion to strike is granted, the plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79 (internal quotations omitted)).
Motion to Strike Analysis:
Herrera moves to strike Macouzet’s allegations for the UCL claim and the following prayer for restitution damages on the grounds that Plaintiff has failed to plead sufficient facts to support such a request.
As the Court has overruled Herrera’s demurrer challenging the sufficiency of the claim, this motion on the same grounds is denied as well. Also, while Herrera’s motion addresses punitive damage which is not recoverable in a UCL action, such request is not present in the SACC.
Accordingly, Herrera’s Motion to Strike is DENIED.
Herrera’s Demurrer to the Second Cause of Action in the SACC is OVERRULED.
Herrera’s Motion to Strike is DENIED.
Macouzet to give notice.
Superior Court Judge
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