FLYNN AND ENSLOW, INC. VS. DARREN WELTER et al

Complaint Information

Darin T. Judd (SBN 160475) Eric D, McFarland (SBN 214245)

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO

FLYNN & ENSLOW, INC,, a California Case No CGC-13-528727 corporation,

| G POSED} ORDER DENYING

Plaintiff, #DEFENDANT DARREN WELTER’S

' MOTION TO STRIKE AND OVERRULING

V8. SAID DEFENDANT’S DEMURRER AS TO

‘ PLAINTIFF’S SECOND AMENDED

| DARREN WELTER, individually and doing COMPLAINT

business as CAL-FAB and DW WIRE CLOTH, and DOES 1 through 50, Date: May 14, 2014 ; Time: 9:30 a.m. Defendants. Dept: 302

Judge: The Heon. Ernest H. Goldsmith

Defendant’s Demurrer and Motion to Strike as to Plaintiff’s Second Amended Complaint came on for hearing in Department 302 of this Court on May \14, 2014, with no party requesting oral argument, the Honorable Emest H. Goldsmith presiding:

Having read and considered all papers filed by the parties in support of and in opposition to the demurrer and motion to strike, the Court hereby affirms the tentative ruling of this Court.

IT IS ORDERED THAT:

1. = Motion to Strike

Denied. Defendant's request for judicial notice is granted as to Ex}:zibifs A-C and H, and denied | as to all other exhibits, Plaintiff's request fof judicial notice is gréntbd as to Exhibit A. The declarations

Denied. Defendant's request for judicial notice is granted as to Ex}:zibifs A-C and H, and denied | as to all other exhibits, Plaintiff's request fof judicial notice is gréntbd as to Exhibit A. The declarations and attached exhibits submitted by both parties were not considered in ruling on this motion to strike, as e;mofidn to strike can only be used to challenge defects that appear on the face of the pleading or matters that are judicially noticeable. (CCP sec. 437(a).) Although Pigintiff amended its complaint beyond the 10 days allowed in this Court's previous order, it serves judicial economy to allow the amendments to stand. Defendant has not shown that he is prejudiced by the untimely amendment. There is no trial date set. Therefore, if Plaintiff would have sought leave to amend after the 10 days expired, such relief would have been granted, given the strong policy of liberally allowing amendments to pleadihgs. (See e.g., Morgan v. Sup. Ct. (1959) 172 Cal. App.2d 527, 530.) Defendant's motion to strike the references in the Second Amended Complaint to Defendant being a vice president or executive is also denied. An individval could hold the titles of operatiofis manager, vice president, and executive at the same time.

and attached exhibits submitted by both parties were not considered in ruling on this motion to strike, as e;mofidn to strike can only be used to challenge defects that appear on the face of the pleading or matters that are judicially noticeable. (CCP sec. 437(a).) Although Pigintiff amended its complaint beyond the 10 days allowed in this Court's previous order, it serves judicial economy to allow the amendments to stand. Defendant has not shown that he is prejudiced by the untimely amendment. There is no trial date set. Therefore, if Plaintiff would have sought leave to amend after the 10 days expired, such relief would have been granted, given the strong policy of liberally allowing amendments to pleadihgs. (See e.g., Morgan v. Sup. Ct. (1959) 172 Cal. App.2d 527, 530.) Defendant's motion to strike the references in the Second Amended Complaint to Defendant being a vice president or executive is also denied. An individval could hold the titles of operatiofis manager, vice president, and executive at the same time.

2. Demurrer

Overruled. 'Defendant‘s request for judicial notice is granted as to Exhibits A-C and H, and -1 denied as to all other exhibits. Plaintiff's request for judicial notice is granted as to Exhibit A. The 'déclax"atio'ns and attached exhibits submitted by both parties were not considered in ruling on this demurrer, as 2 demurrer can only be used to ché}lenge defects that appear on the face of the pleading or matters that are judicially noticeable. (Blank v. Kirwan (1985) .39 Cal,3d 311, 318.) As to the first and second causes of action, the Second Amended Complaint ("SAC") adequately pleads the elements of intentional and negligent interference with prospective business advantage and the allegations are not impermissibly inconsistent with earlier pleadings. As to the thitd cause of action for fraud, the SAC adequately pleads justifiable reliance with the réquisite specificity. (SAC, par. 43.) 3. Amswer |

Accordingly, per CRC 3. 1320(3}, Defendant is to file an answer within 10 days of service of

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{ [PROPOSED] ORDER DENYING DEFENDANT DARREN WELTER’S MOTION TO STRIKE AND OVERRULING SAID DEFENDANT’S DEMURRER AS TO PLAINTIFE’S SECOND AMENDED COMPLAINT -

Approvcd‘ as conforming to the Court’s order.

Fritz Law Qffices

William F. Fri q. . Attorneys for Defendant Darren Welter

Dated: /%I y /3! o 2014 By: % i