This case was last updated from Los Angeles County Superior Courts on 04/28/2021 at 00:27:08 (UTC).

PEGGY'E MARTIN, ET AL. VS DAVID LILLY, ET AL.

Case Summary

On 10/28/2019 PEGGY'E MARTIN filed a Contract - Other Contract lawsuit against DAVID LILLY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9909

  • Filing Date:

    10/28/2019

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiffs

PSC GATEWAY CONSULTANCY FIRM

MARTIN PEGGY'E

Defendants

LILLY DAVID

LOW COST LEGAL DOCUMENTS INC.

Attorney/Law Firm Details

Defendant Attorneys

LILLY DAVID

LILLY DAVID M.

 

Court Documents

Other - (name extension) - Proof of Service of Set One Interrogatories

3/29/2021: Other - (name extension) - Proof of Service of Set One Interrogatories

Other - (name extension) - Proof of Service for Request For Admission

3/29/2021: Other - (name extension) - Proof of Service for Request For Admission

Motion to Deem RFA's Admitted - Motion to Deem RFA's Admitted

4/21/2021: Motion to Deem RFA's Admitted - Motion to Deem RFA's Admitted

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

4/21/2021: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Proof of Service by Mail - Proof of Service by Mail

4/21/2021: Proof of Service by Mail - Proof of Service by Mail

Proof of Personal Service - Proof of Personal Service

12/22/2020: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

12/22/2020: Proof of Personal Service - Proof of Personal Service

Minute Order - Minute Order (Hearing on Motion to Dismiss)

2/11/2021: Minute Order - Minute Order (Hearing on Motion to Dismiss)

Objection (name extension) - Objection To Filing of Second Amended Complaint

10/26/2020: Objection (name extension) - Objection To Filing of Second Amended Complaint

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

11/2/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Amended Complaint - Amended Complaint (2nd)

7/27/2020: Amended Complaint - Amended Complaint (2nd)

Motion to Dismiss - Motion to Dismiss

7/31/2020: Motion to Dismiss - Motion to Dismiss

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

7/16/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

7/17/2020: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

6/22/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

2/3/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Civil Case Cover Sheet - Civil Case Cover Sheet

10/28/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

41 More Documents Available

 

Docket Entries

  • 04/26/2021
  • DocketOn the Amended Complaint (3rd) filed by Peggy'e Martin, et al. on 04/21/2021, entered Order for Dismissal without prejudice as to the entire action, pursuant to CCP 581(b)(3)

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  • 04/26/2021
  • DocketUpdated -- Certificate of Mailing for (Non-Jury Trial;) of 04/26/2021: Status Date changed from 04/26/2021 to 04/26/2021; As To Parties: removed

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  • 04/26/2021
  • DocketMinute Order (Non-Jury Trial;)

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  • 04/26/2021
  • DocketCertificate of Mailing for (Non-Jury Trial;) of 04/26/2021; Filed by: Clerk

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  • 04/26/2021
  • DocketNon-Jury Trial scheduled for 04/26/2021 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Taken Off Calendar by Court on 04/26/2021

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  • 04/26/2021
  • DocketHearing on Motion to Deem Request for Admissions Admitted scheduled for 05/12/2021 at 10:00 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 04/26/2021

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  • 04/26/2021
  • DocketHearing on Motion to Continue Trial scheduled for 05/17/2021 at 10:00 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 04/26/2021

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  • 04/21/2021
  • DocketMotion to Deem RFA's Admitted; Filed by: Peggy'e Martin (Plaintiff)

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  • 04/21/2021
  • DocketProof of Service by Mail; Filed by: Peggy'e Martin (Plaintiff); As to: David Lilly (Defendant); Low Cost Legal Documents, Inc. (Defendant); After Substituted Service of Summons & Complaint ?: No

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  • 04/21/2021
  • DocketMotion to Continue Trial Date; Filed by: Peggy'e Martin (Plaintiff); PSC Gateway Consultancy Firm (Plaintiff)

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66 More Docket Entries
  • 11/04/2019
  • DocketAmended Complaint (1st); Filed by: Peggy'e Martin (Plaintiff); PSC Gateway Consultancy Firm (Plaintiff); As to: David Lilly (Defendant); Low Cost Legal Documents, Inc. (Defendant)

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  • 10/28/2019
  • DocketUpdated -- Amended Complaint (1st): Status Date changed from 11/04/2019 to 10/28/2019

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  • 10/28/2019
  • DocketComplaint; Filed by: Peggy'e Martin (Plaintiff); PSC Gateway Consultancy Firm (Plaintiff); As to: David Lilly (Defendant); Low Cost Legal Documents, Inc. (Defendant)

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  • 10/28/2019
  • DocketCivil Case Cover Sheet; Filed by: Peggy'e Martin (Plaintiff); PSC Gateway Consultancy Firm (Plaintiff)

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  • 10/28/2019
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 10/28/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 10/28/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 10/28/2019
  • DocketCase assigned to Hon. Serena R. Murillo in Department 94 Stanley Mosk Courthouse

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  • 10/28/2019
  • DocketNon-Jury Trial scheduled for 04/26/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 10/28/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 10/31/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 19STLC09909    Hearing Date: March 30, 2021    Dept: 26

Martin v. Lilly, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant David Lilly's Demurrer to the Second Amended Complaint is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND AS TO THE 3RD AND 4TH CAUSES OF ACTION AND OVERRULED AS TO THE 1ST, 2ND AND 5TH CAUSES OF ACTION. LEAVE TO AMEND IS GRANTED WITHIN 10 DAYS’ SERVICE OF THIS ORDER ON PLAINTIFF.

ANALYSIS:

On October 28, 2019, pro se Plaintiffs Peggy’e Martin and PSC Gateway Consultancy Firm (“Plaintiffs”) filed the instant action for breach of lease agreement and common counts against Defendants David Lilly and Low Cost Legal Documents, Inc. (“Defendants”). On November 4, 2019, Plaintiffs filed a First Amended Complaint for (1) breach of contract; (2) unjust enrichment; (3) tortious interference with business relationship; (4) interference with prospective economic advantage; and (5) trespass on business property.

On June 24, 2020, the Court sustained Defendant Lilly’s Demurrer to the First Amended Complaint as to the first through fourth causes of action. The demurrer was overruled as to the fifth cause of action. Plaintiffs filed the Second Amended Complaint on July 27, 2020.

Defendant Lilly filed the instant Demurrer to the Second Amended Complaint on March 1, 2021 and Plaintiff filed an opposition on March 17, 2021.

Discussion

The Court finds that the Demurrer is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. Given that the demurrer to the First Amended Complaint was accompanied by a meet and confer declaration, Defendant Lilly is aware of the requirement. The Court admonishes Defendant Lilly for failing to comply with the meet and confer requirement and warns that failure to do so in the future will result in the demurrer being placed off calendar.

Like the First Amended Complaint, Plaintiffs’ Second Amended Complaint alleges causes of action for (1) breach of contract; (2) unjust enrichment; (3) tortious interference with business relationship; (4) interference with prospective economic advantage; and (5) trespass on business property. It appears that Defendant demurs to each cause of action for failure to allege sufficient facts pursuant to Code of Civil Procedure section 430.10, subdivision (e). However, the Demurrer is devoid of any citation to legal authority. Not only does this violate Code of Civil Procedure section 1010 and Cal. Rules of Court Rule 3.1113, subdivision (b), it robs the Demurrer of persuasive force. Nevertheless, the Court will consider whether the causes of action are sufficiently stated.

1st Cause of Action for Breach of Contract

A cause of action for breach of contract must allege (1) existence of contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Defendant demurs on the grounds that Plaintiff has not alleged the terms of the parties’ agreement.

The Second Amended Complaint alleges that on March 13, 2017, the parties entered into an oral agreement to share in the lease of two joint office suites. (SAC, p. 3:2-4.) The parties entered into a single written lease agreement for the joint suites with the property manager. (Id. at p. 2:4-6.) Suite 1040 was for Plaintiffs’ use at rent of $600.00 and Suite 1039 was for Defendant’s use at rent of $400.00. (Id. at p. 2:6-8.) These terms were made in front of the property manager, Jeff Magaro, to whom Plaintiffs paid the security deposit and last month’s rent. (Id. at 6:25-7:1.) However, the parties made arrangements whereby Defendant would use more of Suite 1040, including having business associates rent desks in Plaintiffs’ suite, which reduced the amount Plaintiffs owed by $400.00. (Id. at p. 2:8-10; Exhs. D and G.) Plaintiffs allege that because they were gone for much of the time, Defendant took over suite 1040 in contravention of the parties’ oral agreement by moving furniture into the suite and rearranging furniture without Plaintiffs’ permission. (Id. at Exhs. G-H.) Defendant also allegedly breached the oral agreement by cancelling a sign for the door of suite 1040 that Plaintiffs had ordered. (Id. at p. 7:9-17 and Exh. H.)

The Court finds that Plaintiff has sufficiently alleged breach of an oral contract. The terms of the parties’ agreement are stated, as is Defendant’s breach, as detailed above. Therefore, the demurrer to the first cause of action for breach of contract is overruled.

2nd Cause of Action for Restitution

“There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citations omitted].” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-388.) Here, Plaintiffs have sufficiently alleged the existence of a contract and to the extent contract damages may not be available, a cause of action for restitution is stated.

The demurrer to the second cause of action is overruled.

3rd Cause of Action for Tortious Interference with Contract

The elements of an action for tortious interference are “ ‘(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.’ ” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.)

The Second Amended Complaint alleges that Plaintiffs partnered with others to build a health services network. (SAC, p. 3:16-20.) Defendant Lilly was involved in this business venture and knew Plaintiffs intended to use suite 1040 to grow the network. (Id. at pp. 3:24-4:1, 4:9-13, 45.) However, allegations regarding actual disruption of the business relationship and resulting damages are missing. It appears that page 9 of the Second Amended Complaint, which might have addressed those elements, was inadvertently omitted from the filing.

Therefore, the demurrer to the third cause of action for tortious interference is sustained with leave to amend.

4th Cause of Action for Interference with Prospective Economic Advantage

The elements of a cause of action for interference with prospective economic advantage are usually stated as follows: “ ‘(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.’ [Citations.]” (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521-522.)

As with the third cause of action, Plaintiffs have not alleged facts showing that Defendant Lilly’s conduct resulted in the disruption of their business relationships. The demurrer to the fourth cause of action is also sustained with leave to amend.

5th Cause of Action for Trespass

Trespass is an unlawful interference with possession of property. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) Plaintiffs allege that Defendant interfered with their possession of suite 1040, in contravention of the agreement regarding the use of that space. Defendant, by occupying portions of suite 1040, had informed Plaintiffs how they could and could not use that space. (SAC, p. 2:4-10; Exh. G.) The Demurrer incorrectly argues that exclusive possession of the property is required to allege trespass. Rather, the plaintiff must allege that the defendant’s intrusion exceeded the scope of access allowed. (CACI 2000.) This is exactly what Plaintiffs have done.

The demurrer to the fifth cause of action is overruled.

Conclusion

Defendant David Lilly's Demurrer to the Second Amended Complaint is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND AS TO THE 3RD AND 4TH CAUSES OF ACTION AND OVERRULED AS TO THE 1ST, 2ND AND 5TH CAUSES OF ACTION. LEAVE TO AMEND IS GRANTED WITHIN 10 DAYS’ SERVICE OF THIS ORDER ON PLAINTIFF.

Moving party to give notice.

Case Number: 19STLC09909    Hearing Date: February 11, 2021    Dept: 26


Case Number: 20STCP03271    Hearing Date: February 11, 2021    Dept: 26

CSE Safeguard Ins. v. Campos, et al.

PETITION FOR ASSIGNMENT OF CASE NUMBER

(Ins. Code § 11580.2(f))

TENTATIVE RULING:

Petitioner CSE Safeguard Insurance’s Petition for Issuance of a Court Action Number is PLACED OFF CALENDAR AS MOOT. The Petition asks the Court to issue a case number in connection with Petitioner’s desire to compel Respondent Evelyn Campos’ discovery responses in an uninsured motorist proceeding. It is not necessary to hold a hearing to obtain the relief sought; a case number was assigned automatically upon the filing of the Petition.

The Court notes that no proof of service of the Summons has been filed and that the Petition was served by electronic mail, which is not permitted under the Code of Civil Procedure. Electronic service is only permitted “[w]hen a document may be served by mail, express mail, overnight delivery, or fax transmission . . . .” (Cal. Rules of Court, Rule 2.251, subd. (a).)

Court clerk to give notice.

Case Number: 19STLC09909    Hearing Date: June 24, 2020    Dept: 26

Based on current conditions, including, but not limited to, the spread of Covid-19, the need for social distancing, and the states of emergency having been declared by Governor Gavin Newsom and President Donald Trump, the General Orders issued by the Presiding Judge and Statewide Orders issued by the Chief Justice, no more than six people may be in the courtroom at any given time, in addition to court staff.  Due to overcrowding concerns via COVID-19, the parties shall make every effort to appear telephonically via CourtCall for their scheduled hearing.

Martin v. Lilly, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant David Lilly's Demurrer to the First Amended Complaint is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND AS TO THE 1ST, 2ND, 3RD AND 4TH CAUSES OF ACTION AND OVERRULED AS TO THE 5TH CAUSE OF ACTION. LEAVE TO AMEND IS GRANTED WITHIN 30 DAYS’ NOTICE OF THIS ORDER ON PLAINTIFF.

ANALYSIS:

On October 28, 2019, pro se Plaintiffs Peggy’e Martin and PSC Gateway Consultancy Firm (“Plaintiffs”) filed the instant action for breach of lease agreement and common counts against Defendants David Lilly and Low Cost Legal Documents, Inc. (“Defendants”). On November 4, 2019, Plaintiffs filed a First Amended Complaint. Defendants filed the instant Demurrer to the First Amended Complaint on February 3, 2020. To date, no opposition has been filed.

Discussion

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Lilly Decl., p. 1:19-25.) The First Amended Complaint alleges causes of action for (1) breach of contract; (2) unjust enrichment; (3) tortious interference with business relationship; (4) interference with prospective economic advantage; and (5) trespass on business property. Defendant demurs to each cause of action for failure to allege sufficient facts pursuant to Code of Civil Procedure section 430.10, subdivision (e) and uncertainty pursuant to Code of Civil Procedure section 430.10, subdivision (f).

First, special demurrers for uncertainty are not permitted in courts of limited jurisdiction, therefore, the Court will not rule on the demurrer for uncertainty. (Code Civ. Proc., § 92, subd. (c).) The Court will address the demurrer for failure to allege sufficient facts as to each cause of action.

1st Cause of Action for Breach of Contract

The First Amended Complaint alleges that on March 13, 2017, the parties entered into an oral agreement to share in the lease of two joint office suites. (FAC, ¶6.) The parties entered into a single written lease agreement for the joint suites with the property manager. (Id. at ¶6 and Exh. A2.) Suite 1040 was for Plaintiff’s use at a rent of $600.00 and Suite 1039 was for Defendant’s use at a rent of $400.00. (Ibid.) Over time, however, the parties made arrangements whereby Defendant would use more of Suite 1040, including having business associates rent desks in Plaintiff’s suite, which reduced the amount she owed. (Id. at ¶¶8-11.) Plaintiff alleges that as she was gone for much of the time, Defendant took over suite 1040 in contravention of the parties’ oral agreement. (Id. at ¶¶18-20.)

The Court agrees that Plaintiff has failed to allege breach of an oral contract. The terms of the parties’ agreement are not stated. Other than alleging that in exchange for $200.00 per month per desk, Defendant could have two associates work in suite 1040, Plaintiff does not indicate the nature of the parties’ contract. Nor does Plaintiff allege how Defendant violated those terms. There appears to have been no consideration exchanged for Defendant’s placement of furniture in suite 1040. To the extent Defendant allegedly “assumed control over suite 1040 without any discussion whatsoever” Plaintiff does not show what part of the oral agreement this conduct violated. It appears that Plaintiff is attempting to allege an oral agreement to sublease suite 1040, but the First Amended Complaint does not allege the parties’ agreement regarding payment of the rent each month, how long this arrangement was to last, or other details of the transaction. Plaintiff also confusingly alleges that the nature of the parties’ agreement was not a sublease, although it was called that by Defendant. (FAC, ¶¶28-29.)

Therefore, the demurrer to the first cause of action for breach of contract is sustained with leave to amend.

2nd Cause of Action for Unjust Enrichment

There is no cause of action for unjust enrichment in California. Rather, unjust enrichment is

“ ‘the result of a failure to make restitution....’ ” (Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448.)

In reviewing a judgment of dismissal following the sustaining of a general demurrer, we ignore “[e]rroneous or confusing labels ... if the complaint pleads facts which would entitle the plaintiff to relief. [Citation].” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186; accord, Richelle L., supra, 106 Cal.App.4th at p. 266, 130 Cal.Rptr.2d 601.) Thus, we must look to the actual gravamen of McBride's complaint to determine what cause of action, if any, he stated, or could have stated if given leave to amend. In accordance with this principle, we construe McBride's purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution.

There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. (See generally 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, §§ 148–150, pp. 218–220; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, §§ 112, 118, pp. 137–138, 142–144.) Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct.

(McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-388.)

Here, Plaintiff alleges that Defendant allowed her to pay for suite 1040 every month while using the space therein for his own benefit and to Plaintiff's exclusion. (FAC, ¶¶11, 19, 23-24.) These allegations might support a claim for trespass against Defendant, which is alleged in the fifth cause of action. However, it is not clear that these allegations entitle Plaintiff to restitution without proper statement of an express contract, fraud, duress, or the like. Therefore, the demurrer to the second cause of action is sustained with leave to amend.

3rd Cause of Action for Tortious Interference with Contract

The elements of an action for tortious interference are “ ‘(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.’ ” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.)

The FAC, however, does not allege facts showing the existence of a valid contract between Plaintiff and any third party. It merely alleges that Plaintiff had existing clients and that the purpose of suite 1040 was to allow Plaintiff to deal with new and existing clients. (FAC, ¶28.) Without facts detailing the nature of Plaintiff's relationships with existing clients and how those relationships deteriorated following Defendant’s use of suite 1040, the demurrer to the 3rd cause of action is sustained with leave to amend.

4th Cause of Action for Interference with Prospective Economic Advantage

The elements of a cause of action for interference with prospective economic advantage are usually stated as follows: “ ‘(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.’ [Citations.]” (Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521-522.)

As with the third cause of action, Plaintiff has not alleged facts showing the existence of an economic relationship with a third party that would probably give rise to future economic benefit. (FAC, ¶¶34-35.) No details are provided regarding what type of professional relationship Plaintiff had with third parties that would make it likely she would be paid. Nor are there allegations of actual, as opposed to speculative, disruption of any such relationships. (Id. at ¶¶36-40.) The demurrer to the fourth cause of action is also sustained with leave to amend.

5th Cause of Action for Trespass

Trespass is an unlawful interference with possession of property. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) Plaintiff alleges that Defendant interfered with her possession of suite 1040, in contravention of their agreement regarding the use of that space. The demurrer misstates the allegations in the FAC to argue that Plaintiff was paying $200.00 a month for the right to hold meetings in suite 1040. The FAC, however, alleges that Plaintiff had a right to suite 1040 to run her business and that Defendant, by occupying portions of suite 1040, had informed Plaintiff how she could and could not use that space. (FAC, ¶¶6, 23 and 24.) This is sufficient to allege a cause of action for trespass. The demurrer to the fifth cause of action is overruled.

ConclusionDefendant David Lilly's Demurrer to the First Amended Complaint is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND AS TO THE 1ST, 2ND, 3RD AND 4TH CAUSES OF ACTION AND OVERRULED AS TO THE 5TH CAUSE OF ACTION. LEAVE TO AMEND IS GRANTED WITHIN 30 DAYS’ NOTICE OF THIS ORDER ON PLAINTIFF.

Moving party to give notice.

DEMURRER / JUDGMENT ON THE PLEADINGS

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Plaintiffs Peggy’e Martin and PSC Gateway Consultancy Firm’s Demurrer or Motion for Judgment on the Pleadings is PLACED OFF CALENDAR.

ANALYSIS:

On October 28, 2019, pro se Plaintiffs Peggy’e Martin and PSC Gateway Consultancy Firm (“Plaintiffs”) filed the instant action for breach of lease agreement and common counts against Defendants David Lilly and Low Cost Legal Documents, Inc. (“Defendants”). On November 4, 2019, Plaintiffs filed a First Amended Complaint. On November 18, 2019, Plaintiffs filed what appear to be responses to written discovery. On December 13, 2019, Plaintiffs filed a document entitled “Notice Of Motion And Motion For General Demurrer To Deffendant’s [Sic] Demurrer & Notice Of Motion And Motion Of Judgment On The Pleadings.” Yet the notice of motion indicates that it is a Demurrer to the Answer. (Demurrer, p. 1:20-26.)

As an initial matter, this demurrer or motion was originally set for hearing on January 16, 2020 but was taken off calendar by the moving party one day earlier on January 15, 2020. Furthermore, no Answer has been filed by Defendants so a demurrer to the Answer cannot be proper. Finally, a demurrer to a demurrer is not proper. (Code Civ. Proc., § 430.30).

Therefore, the instant “Demurrer or Motion for Judgment on the Pleadings” is PLACED OFF CALENDAR.

Court clerk to give notice.

Case Number: 19STLC09909    Hearing Date: February 26, 2020    Dept: 26

Martin v. Lilly, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

The Court notes that the Demurrer was not timely served on Plaintiffs. Code of Civil Procedure section 1005 requires filing and service of the moving papers at least 16 court days prior to the hearing date. Also, when motion papers are served by mail, as the Demurrer was, an additional five days must be added to the service time for proper notice. (Code Civ. Proc., § 1005, subd. (b).) Therefore, the Demurrer should have been served by January 26, 2020. Instead, the Demurrer was not served until January 31, 2020. (Demurrer, Proof of Service.) Given that the Demurrer is unopposed, the Court is concerned that Plaintiff was not provided proper notice in time to file and serve an opposition. Therefore, the hearing on the Demurrer is CONTINUED TO APRIL 21, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. OPPOSITION AND REPLY PAPERS, IF ANY, ARE TO BE FILED AND SERVED IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE SECTION.

Clerk to give notice.

Case Number: 19STLC09909    Hearing Date: January 16, 2020    Dept: 94

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Plaintiffs Peggy’e Martin and PSC Gateway Consultancy Firm’s Demurrer or Motion for Judgment on the Pleadings is PLACED OFF CALENDAR.

SUMMARY OF COMPLAINT: Action for breach of lease agreement and common counts.

MOTION: The Answer fails to allege sufficient facts to state a cause of action and is uncertain.

OPPOSITION: Filed December 31, 2019.

ANALYSIS:

On October 28, 2019, pro se Plaintiffs Peggy’e Martin and PSC Gateway Consultancy Firm (“Plaintiffs”) filed the instant action for breach of lease agreement and common counts against Defendants David Lilly and Low Cost Legal Documents, Inc. (“Defendants”). On November 4, 2019, Plaintiffs filed a First Amended Complaint. On November 18, 2020, Plaintiffs filed what appear to be responses to written discovery. On December 13, 2019, Plaintiffs filed a document entitled “Notice Of Motion And Motion For General Demurrer To Deffendant’s [Sic] Demurrer & Notice Of Motion And Motion Of Judgment On The Pleadings.” Yet the notice of motion indicates that it is a Demurrer to the Answer. (Demurrer, p. 1:20-26.)

As no Demurrer or Answer has been filed by Defendants, nor would such a demurrer to a demurrer be proper (see Code Civ. Proc., § 430.30), the instant “Demurrer or Motion for Judgment on the Pleadings” is PLACED OFF CALENDAR.

Court clerk to give notice.