This case was last updated from Los Angeles County Superior Courts on 04/06/2022 at 21:38:35 (UTC).

TMC FRANCHISE CORPORATION, AN ARIZONA CORPORATION VS BROADWAY RESTAURANTS, INC., A CALIFORNIA CORPORATION, ET AL.

Case Summary

On 05/24/2021 TMC FRANCHISE CORPORATION, AN ARIZONA CORPORATION filed a Contract - Other Contract lawsuit against BROADWAY RESTAURANTS, INC , A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9544

  • Filing Date:

    05/24/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Cross Defendant

TMC FRANCHISE CORPORATION

Cross Plaintiffs and Defendants

BROADWAY RESTAURANTS INC.

BARNES ZURI

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

KARTCHNER TODD S.

Cross Plaintiff and Defendant Attorney

MCDERMOTT LISAMARIE

 

Court Documents

Answer

3/24/2022: Answer

Unknown - AMENDED CROSS-COMPLAINT (1ST)

2/24/2022: Unknown - AMENDED CROSS-COMPLAINT (1ST)

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

1/24/2022: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

Notice of Ruling

1/28/2022: Notice of Ruling

Opposition - OPPOSITION OPPOSITION OF DEFENDANT CROSS-COMPLAINANT BROADWAY RESTAURANTS TO DEMURRER TO CROSS-COMPLAINT BY TMC FRANCHISE

1/10/2022: Opposition - OPPOSITION OPPOSITION OF DEFENDANT CROSS-COMPLAINANT BROADWAY RESTAURANTS TO DEMURRER TO CROSS-COMPLAINT BY TMC FRANCHISE

Opposition - OPPOSITION OPPOSITION OF DEFENDANT CROSS-COMPLAINANT BROADWAY RESTAURANTS TO MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT BY TMC FRANCHISE

1/10/2022: Opposition - OPPOSITION OPPOSITION OF DEFENDANT CROSS-COMPLAINANT BROADWAY RESTAURANTS TO MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT BY TMC FRANCHISE

Reply - REPLY IN SUPPORT OF MOTION TO STRIKE

1/14/2022: Reply - REPLY IN SUPPORT OF MOTION TO STRIKE

Reply - REPLY IN SUPPORT OF DEMURRER

1/14/2022: Reply - REPLY IN SUPPORT OF DEMURRER

Case Management Order

11/29/2021: Case Management Order

Case Management Statement

11/16/2021: Case Management Statement

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

11/29/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice of Ruling

11/30/2021: Notice of Ruling

Notice of Posting of Jury Fees

11/10/2021: Notice of Posting of Jury Fees

Case Management Statement

11/10/2021: Case Management Statement

Demurrer - with Motion to Strike (CCP 430.10)

10/20/2021: Demurrer - with Motion to Strike (CCP 430.10)

Motion to Strike (not initial pleading)

10/20/2021: Motion to Strike (not initial pleading)

Cross-Complaint

9/20/2021: Cross-Complaint

Answer

9/20/2021: Answer

21 More Documents Available

 

Docket Entries

  • 02/07/2023
  • Hearing02/07/2023 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 01/31/2023
  • Hearing01/31/2023 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/03/2022
  • Hearing10/03/2022 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 03/24/2022
  • DocketAnswer; Filed by TMC Franchise Corporation (Cross-Defendant)

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  • 02/24/2022
  • DocketAmended Cross-Complaint ( (1st)); Filed by Broadway Restaurants, Inc. (Cross-Complainant)

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  • 01/28/2022
  • DocketNotice of Ruling; Filed by TMC Franchise Corporation (Plaintiff)

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  • 01/24/2022
  • Docketat 08:30 AM in Department 37; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

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  • 01/24/2022
  • DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10))); Filed by Clerk

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  • 01/14/2022
  • DocketReply (in Support of Motion to Strike); Filed by TMC Franchise Corporation (Cross-Defendant)

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  • 01/14/2022
  • DocketReply (in Support of Demurrer); Filed by TMC Franchise Corporation (Cross-Defendant)

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19 More Docket Entries
  • 07/23/2021
  • DocketEx Parte Application (for Order for Service by Delivery to Secretary of State); Filed by TMC Franchise Corporation (Plaintiff)

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  • 07/14/2021
  • DocketDeclaration (of Demurring or Moving Party in Support of Automatic Extension); Filed by Zuri Barnes (Defendant)

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  • 06/23/2021
  • DocketProof of Service by Substituted Service; Filed by TMC Franchise Corporation (Plaintiff)

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  • 06/23/2021
  • DocketAffidavit (of Due Diligence); Filed by TMC Franchise Corporation (Plaintiff)

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  • 06/01/2021
  • DocketSummons (on Complaint); Filed by TMC Franchise Corporation (Plaintiff)

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  • 05/27/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/27/2021
  • DocketCertificate of Mailing for ([Notice of Case Management Conference]); Filed by Clerk

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  • 05/25/2021
  • DocketCivil Case Cover Sheet; Filed by TMC Franchise Corporation (Plaintiff)

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  • 05/24/2021
  • DocketComplaint; Filed by TMC Franchise Corporation (Plaintiff)

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  • 05/24/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******9544 Hearing Date: January 24, 2022 Dept: 37

HEARING DATE: January 24, 2022

CASE NUMBER: *******9544

CASE NAME: TMC Franchise Corporation, an Arizona corporation v. Broadway Restaurants, Inc., a California corporation, et al.

MOVING PARTY: Plaintiff and Cross-Defendant, TMC Franchise Corporation

OPPOSING PARTIES: Defendants and Cross-Complainants, Broadway Restaurants, Inc., a California corporation and Zuri Barnes

TRIAL DATE: February 7, 2023

PROOF OF SERVICE: OK

PROCEEDING: Cross-Defendant’s Demurrer to Cross-Complaint, Cross-Defendant’s Motion to Strike Portions of Cross-Complaint

OPPOSITION: January 10, 2022

REPLY: January 14, 2022

TENTATIVE: TMC’s demurrer is sustained as to the second cause of action and otherwise overruled. TMC’s motion is granted as to the request to strike monetary damages (Notice of Motion, item 2.) TMC’s motion is otherwise denied. Broadway is granted 30 days leave to amend. Broadway is granted 30 days leave to amend. TMC is to give notice.

Background

This action arises in connection with a Franchise Agreement entered into between Plaintiff, TMC Franchise Corporation (“TMC”) and Defendant, Broadway Restaurants, Inc. (“Broadway”) TMC’s Complaint alleges that Broadway and Defendant Zuri Barnes (“Barnes”) operated a convenience store located at 219 West Seventh Street, Los Angeles, California. (the “Store”) TMC alleges that Broadway breached the Franchise Agreement beginning June 2019 because it blocked customers’ access to the walk-in cooler and failed to maintain adequate inventory. Subsequently, TMC terminated the Franchise Agreement as permitted under the Franchise Agreement due to Broadways’ breaches. Additionally, Broadway also allegedly breached the Franchise Agreement because it failed to pay TMC’s damages after TMC exercised its right of termination. Defendant Barnes is allegedly liable for TMC’s damages because she executed a Personal Guaranty of Performance. (the “Guaranty”)

TMC’s Complaint alleges the following causes of action: (1) breach of contract against Broadway, (2) breach of guaranty against Barnes.

On September 20, 2021, Broadway filed its Cross-Complaint against TMC. Broadway’s Cross-Complaint asserts that TMC was the party who breached the Franchise Agreement by failing to advertise the store, engaging in price fixing and failing to deposit rebates received. The Cross-Complaint asserts the following causes of action: (1) breach of written contract, (2) breach of the implied covenant of good faith and fair dealing, (3) accounting, (4) unfair business practices (Business and Professions Code 17200).

TMC now demurs to the second through fifth causes of action of the Cross-Complaint. TMC also moves to strike portions of the Cross-Complaint. Broadway opposes both motions.

DEMURRER

Discussion[1]

  1. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119(Poizner).) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

  1. Analysis

  1. General Demurrer for Uncertainty

First, TMC contend that their demurrer must be sustained as to all causes of action because the Cross-Complaint is fatally uncertain. (Demurrer, 6-7.)

A demurrer based on uncertainty only applies where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Though California courts take a liberal view toward in artfully drawn pleadings, it remains essential a complaint set forth the actionable facts with sufficient precision to inform the defendant of what the plaintiff is complaining about and what remedies are being sought. (Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 636.)

The court has reviewed the Cross-Complaint. Based upon this review the court finds that the Cross-Complaint is not so uncertain that the TMC cannot reasonably respond. As such, the court does not sustain TWC’s demurrer on this basis.

  1. Second Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing

A breach of the implied covenant of good faith and fair dealing requires something more than breach of the contractual duty itself. (Careau & Co v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394 (Careau).) “Thus, allegations which assert such a claim must show that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.” (Id. at 1395.)

TMC asserts that Broadway’s second cause of action is insufficiently pled and superfluous because it alleges identical facts to the first cause of action. (Demurrer, 7-8.) TMC relies on Careau in support of this argument. (Id.) In opposition, Broadway contends that the second cause of action is not superfluous because it is an entirely different claim from the first cause of action. (Opposition, 3-4.) Broadway also asserts that Careau does not apply to this action because it only applies to insurance actions, and the instant action does not concern insurance. (Id.)

In reply, TMC contends that the second cause of action is insufficiently pled because it fails to allege that TMC engaged in something more than breach of the Franchise Agreement itself. (Reply, 3-4.)

Here, the Cross-Complaint alleges that TMC breached the Franchise Agreement by “failing to advertise the Store, engaging in price-fixing, and failing to deposit rebate received by TMC to Broadway Restaurants after mandating Broadway Restaurants offer the same to its customers.” (Cross-Complaint 6.) The Cross-Complaint again alleges that TMC breached the Franchise Agreement in this manner in connection with the second cause of action. (Cross-Complaint 15.) Broadway has allegedly performed under the Franchise Agreement and has been damaged as a direct result of TMC’s actions. (Cross-Complaint 16-17.)

The court agrees with TMC that the second cause of action is insufficiently pled. Pursuant to Careau, Broadway was required to allege something more than breach of the Franchise Agreement to plead a claim for breach of the implied covenant of good faith and fair dealing. The Cross-Complaint has not done so, as the Cross-Complaint’s allegations in support of the first and second causes of action are identical. Additionally, the court is not persuaded by Broadway’s argument that Careau does not apply. Careau was not an insurance case, but rather a lending case, and it did not limit its holding to the insurance context.

For these reasons, TMC’s demurrer to this cause of action is sustained.

  1. Third Cause of Action: Accounting

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.)

TMC contends that the third cause of action is insufficiently pled for the following reasons: (1) Broadway cannot allege that a special relationship existed because it and TMC, because a franchisee and a franchisor are not a special relationship for purposes of this cause of action, and (2) Broadway’s losses are ascertainable without an accounting. (Demurrer, 8-10.) TMC cites to cases, including Martin v. U-Haul Co. of Fresno (1988) 204 Cal. App. 3d 396, 415 (Martin) and Harris v. Atlantic Richfield Co. (1993) 14 Cal. App. 4th 70, 79 (Harris) in support of the first argument.

TMC’s reliance on Martin is misplaced. Martin did not involve a cause of action for accounting. The cited portion of Martin holds that granting nonsuit on a cause of action for breach of the covenant of good faith and fair dealing was proper in part because there was no “special relationship” between the parties. (Martin, supra, 204 Cal.App.3d at 415.) Thus, Martin is inapplicable to this action.

TMC’s reliance on Harris is also misplaced, as Harris also did not involve a cause of action for accounting. The cited portion of Harris discussed what kind of special relationship is required to warrant imposition of a “tort remedy for breached of the implied covenant.” (Harris, supra, 14 Cal.4th at 79.) Thus, Harris is inapplicable to this action.

In opposition, Broadway contends that a special relationship is not required for an accounting but rather, allegations that “some” relationship exists are sufficient to state a claim for an accounting. (Opposition, 4-5.) Broadway cites to Kritzer v. Lancaster (1950) 96 Cal.App.2d 1, 7 (Kritzer) for this cause of action.

Kritzer holds that a cause of action for accounting is properly stated when the complaint alleges that “defendant was the trusted agent of the plaintiff, acting in a fiduciary capacity” and engaged in misconduct which caused Plaintiff losses, the “true amounts of which cannot be ascertained without an accounting.” (Kritzer, supra, 96 Cal.App.2d at 6-7.)

In reply, TMC contends that Broadway’s third cause of action fails because Broadway concedes that its losses are ascertainable without an accounting. (Reply, 4-5.) Additionally, TMC asserts that while a fiduciary relationship is not required, the Cross-Complaint’s alleged relationship between TMC and Broadway is insufficient to support a claim for accounting. (Reply, 4-5.)

Here, the Cross-Complaint alleges that a special relationship existed between Broadway and TMC. (Cross-Complaint, 19.) Additionally, a balance has become due and owing as a result of this special relationship and TMC’s alleged misconduct, the “exact amount of which can only be ascertained by an accounting.” (Cross-Complaint, 20.)

Liberally construing the allegations of the Cross-Complaint in favor of Broadway, the court finds the third cause of action sufficiently pled. TMC’s cited cases do not stand for the proposition that a franchisee and franchisor relationship does not qualify for a “special relationship” for purposes of stating a cause of action for accounting. The Cross-Complaint alleges that the parties had a special relationship and that Broadway suffered losses which cannot be ascertained without an accounting. This is sufficient for purposes of demurrer.

For these reasons, TMC’s demurrer to this cause of action is overruled.

  1. Fourth Cause of Action: Unfair Business Practices (Business & Professions Code 17200)

Business and Professions Code section 17200 (“UCL”) prohibits “unfair competition,” which is defined to include “any unlawful, unfair or fraudulent business act or practice” and “unfair, deceptive, untrue or misleading advertising” and any act prohibited by business and professions code section 17500. A cause of action under the UCL must be stated with “reasonable particularity.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261.)

“While the scope of conduct covered by the UCL is broad, its remedies are limited. [Citation.] A UCL action is equitable in nature; damages cannot be recovered. [Citation.] [The Supreme Court has] stated that under the UCL, ‘[p]revailing plaintiffs are generally limited to injunctive relief and restitution.’” (Korea Supply Co. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.) UCL actions based on “unlawful” conduct may be based on violations of other statutes. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)

TMC asserts that the fourth cause of action is insufficiently pled because the fourth cause of action is not pled with sufficient particularity. (Demurrer, 10.) In opposition, Broadway contends that the fourth cause of action is sufficiently pled because paragraphs 24-26 of the Cross-Complaint has set forth the essential elements of a UCL claim. (Opposition, 5.)

In reply, TMC asserts that the fourth cause of action is insufficiently pled because Broadway did not allege which aspect of the UCL was violated, or, for example, how or when TMC engaged in wrongful conduct. (Reply, 6.)

Here, the Cross-Complaint alleges that TMC breached the Franchise Agreement by engaging in unlawful, unfair and fraudulent business practices such as “price-fixing,” “failing to advertise the Store,” and “failing to deposit rebates received by TMC to Broadway Restaurants after mandating Broadway Restaurants offer the same to its customers.” (Cross-Complaint 24.) As a result of these and other actions, Broadway has allegedly been damaged. (Cross-Complaint, 26.)

Liberally construing the allegations of the Cross-Complaint in favor of Broadway, the court finds the fourth cause of action sufficiently pled. TMC did not cite any authority for its argument that Broadway was to identify the specific portions of the UCL it allegedly violated in order to state a cause of action. The Cross-Complaint alleges that TMC engaged in various unfair, unlawful or fraudulent business practices which caused Broadway damages. This is sufficient to state a claim under the UCL.

For these reasons, TMC’s demurrer to this cause of action is overruled.

Conclusion

TMC’s demurrer is sustained as to the second cause of action and otherwise overruled. Broadway is granted 30 days leave to amend. TMC is to give notice.

MOTION TO STRIKE

TMC moves to strike the following portions of the Cross-Complaint:

1. Any and all references to a “special relationship” between TMC and Broadway; and

2. Page 7, Paragraph 26 and Page 9 regarding Broadway’s claim for monetary damages under its cause of action for Unfair Business Practices.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

  1. Analysis

  1. References to “Special Relationship”

TMC asserts that the Cross-Complaint’s references to a “special relationship” between it and Broadway are improper because a franchisee and franchisor relationship is not a “special relationship” as a matter of law. (Motion, 5-6.) TMC cites to cases, including Martin v. U-Haul Co. of Fresno (1988) 204 Cal. App. 3d 396, 415 (Martin) and Harris v. Atlantic Richfield Co. (1993) 14 Cal. App. 4th 70, 79 (Harris) in support of this argument.

As discussed above, the court found that TMC’s citation to Martin, Harris and other similar cases inapplicable to this action. TMC’s cited authority do not discuss an accounting cause of action or whether a “special relationship” is properly pled for purposes of an accounting cause of action.

Thus, the court rejects TMC’s argument that the Cross-Complaint’s references to a “special relationship” are improper. TMC’s motion is denied as to the request to strike references to “special relationship.”

  1. Page 7, Paragraph 26, Page 9 re: Claim for Damages under Fourth Cause of Action

TMC contends that Broadway’s request for monetary damages in the fourth cause of action must be stricken because the only damages available for a UCL cause of action are restitution and injunctive relief. (Motion, 6.) In opposition, Broadway contends that TMC’s motion must be denied as to this request because the fourth cause of action is properly pled. (Opposition, 4-5.)

The court agrees with TMC that Broadway’s request for monetary damages is improper. As discussed above in connection with TMC’s demurrer, Plaintiffs in a UCL cause of action are not permitted to recover monetary damages but are instead limited to restitution or an injunction. Broadway has not cited any authority to support the proposition that monetary damages can be recovered in connection with a UCL cause of action.

For these reasons, TMC’s motion is granted as to the request to strike monetary damages.

Conclusion

TMC’s motion is granted as to the request to strike monetary damages (Notice of Motion, item 2.) TMC’s motion is otherwise denied. Broadway is granted 30 days leave to amend. TMC is to give notice.


[1] TMC submits the declaration of its counsel, Todd Kartchner (“Kartchner”) to demonstrate compliance with statutory meet and confer requirements. Kartchner attests that he sent Broadway’s counsel a meet and confer letter on October 1, 2021 outlining the deficiencies in the Cross-Complaint and requesting a meet and confer discussion. (Kartchner Decl. 5-6, Exh. 1.) Broadway’s counsel eventually responded by letter stating that the Cross-Complaint was properly pled. (Kartchner Decl. 10-11.) The Kartchner Declaration is sufficient for purposes of Code of Civil Procedure sections 430.41 and 435.5.


Case Number: *******9544 Hearing Date: June 17, 2022 Dept: 37

TMC Franchise Corporation v. Broadway Restaurants Hearing Date: 6/17/2022

*******9544

Moving Party: Attorney Shannon Cohan

Opposing Party: None.

Relief Requested: Application of Shannon Cohan for Admission to Appear as Counsel Pro Hac Vice for Plaintiff/Cross-Defendant TMC Franchise Corporation

TENTATIVE: Application is GRANTED

Shannon Cohan has applied for an order permitting her to appear as counsel pro hac vice in this action on behalf of Plaintiff/Cross-Defendant TMC Franchise Corporation pursuant to Rule 9.40 of the California Rules of Court.

Legal Standard

CRC Rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear as counsel pro hac vice in the State of California by filing a verified application together with proof of service by mail of a copy of the application and notice of hearing on all parties who have appeared in the case and on the State Bar of California at its San Francisco office, with payment of a $50.00 fee, so long as that attorney is not a resident of the State of California, and is not regularly engaged in substantial business, professional, or other activities in the State of California

The application must state: (1) the applicant’s residence and office addresses; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member in good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record in the local action. (Cal. Rules of Court, rule 9.40(d).)

Discussion

Shannon Cohan seeks a court order permitting her to appear as counsel pro hac vice to represent Plaintiff/Cross-Defendant TMC Franchise Corporation in this action. The Court finds Shannon Cohan’s application complies with the requirements of CRC Rule 9.40.

Conclusion

Based on the foregoing, the application for admission to appear as counsel pro hac vice is GRANTED.

Order to Show Cause Re: Pro Hac Vice Status Counsel for Plaintiff/Cross-Defendant TMC Franchise Corporation, Shannon Cohan - (Proof of Renewal Fee Payment) (Gov. Code 70617(e)(2)) is scheduled for 06/17/2023 at 08:30 AM in Department 37 of the Stanley Mosk Courthouse. Moving Party is ordered to give notice.



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