Mendes vs. Morrison

opposing party is bound by what that evidence appears to show.” (Ibid.)

“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113–114.) “[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Ibid.)

Based on the authority above, the Court is not persuaded that it may consider, interpret, and apply the indemnity clause at issue in the demurrer.

Second, even if the Court were to take judicial notice of the contract attached to the declaration of in support of the demurrer, the Court is not permitted to interpret the application of this contract because the interpretation and applicable to the facts alleged in the Cross-Complaint is disputable. In fact, based on the allegations in the Cross-Complaint, the indemnity clause discussed in the demurrer would not apply because Cross-Complainant alleges that Cross-Defendants improperly managed the premises. The application of the indemnity clause raised in the demurrer depends on the “proper management of the premises.” Based on the facts alleged in the Cross- Complaint, the indemnity clause would not apply.

Given the above, the Demurrer is OVERRULED as to the indemnity clause argument. All arguments in the Demurrer rely on the Court applying the indemnity clause attached to the declaration in support of the Demurrer.

2. Economic Loss Rule

Next, Cross-Defendants argue that Cross-Complainant negligence cause of action is barred by the economic loss rule.

Defendant relies primarily on Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1 in support its argument that the negligence cause of action is barred by the economic loss rule. Rattagan held:

“[U]nder the economic loss rule, tort recovery for breach of a contract duty is generally barred . . . unless two conditions are satisfied. A plaintiff must first demonstrate the defendant’s injury-causing conduct violated a duty that is independent of the duties and

rights assumed by the parties when they entered the contract. Second, the defendant’s conduct must have caused injury to persons or property that was not reasonably contemplated by the parties when the contract was formed.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 20-21.)

Importantly, “the economic loss rule does not apply to limit recovery for intentional tort claims like fraud. The doctrine only applies to bar tort recovery for negligently inflicted economic losses unaccompanied by physical or property damage under the limits recognized in Sheen.” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 38.)

Here, the Court finds that the economic loss rule does not bar the negligence cause of action. The Cross- Complainant alleges damage to the property at issue as a result of Cross-Defendants’ alleged negligent management of the property at issue (water and mold damage) and further alleges that Cross-Complainants seek to recover damages according to proof.

The Demurrer is OVERRULED as to the economic loss rule argument.

3. Fiduciary Relationship

Last, Cross-Defendants argue that Cross-Complainant breach of fiduciary duty cause of action is barred because there is no fiduciary relationship between the parties. Rather, Cross-Defendants argue that their relationship is an “arm’s length transaction” wherein Cross-Defendants offered a service in exchange for money.

In California, “[t]he elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.)

“A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party.” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29, as modified on denial of reh’g (Mar. 20, 2003) [citations omitted].) “Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating

to the interest of the other party without the latter’s knowledge or consent.” (Ibid.)

“Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client ... whereas a ‘confidential relationship’ may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship.” (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1160.) Importantly, however, “[b]oth relationships give rise to a fiduciary duty, that is, a duty ‘to act with the utmost good faith for the benefit of the other party.’” (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1160.)

“The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.” (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 383.)

Moreover, a “fiduciary relationship is created where a person reposes trust and confidence in another and the person in whom such confidence is reposed obtains control over the other person’s affairs.” (Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 586. Importantly, the Court in Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 583 expressly held that a “confidential relationship may exist between an accountant and a client.” (Ibid.)

Still, “[t]he mere placing of a trust in another person does not create a fiduciary relationship.” (Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 586 [citing Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 13].) Also, “an agreement to communicate one’s knowledge, exercising his special knowledge and skill in the area of learning concerned, does not create a trust but only a contractual obligation.” (Ibid.) Likewise, an “ordinary arm’s-length business relationship” does not constitute fiduciary relationship.” (Henry v. Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405, 1419.)

Here, the Court finds that the Cross-Complaint alleges the requisite fiduciary relationship to survive the Demurrer. (Cross-Complaint, ¶¶ 33-42.) As alleged, “Section 1. a) of the Management Agreement provides in pertinent part: “The Owners [sic] hereby appoint ACE PROFESSIONAL PROPERTY MANAGEMENT as their sole and exclusive agent to rent, lease, and/or manage the

premises.” (Cross-Complaint, ¶ 9.) Moreover, “Section 1. c) of the Management Agreement provides in pertinent part: “The Company is empowered to sign leases on the Owner’s behalf, and to enforce the provisions of same, and to institute legal action or other proceedings to collect rents and other sums due, and to dispossess tenants and other persons from the premises.” (Cross- Complaint, ¶ 10.)

The Court finds that Cross-Complainants have alleged the requisite principal-agent relationship to establish a fiduciary relationship at this stage in the litigation.

As such, the Demurrer is OVERRULED as to this argument.

The Demurrer is further OVERRULED as to the cause of action for declaratory relief as the Demurrer only argues that cause of action fails on the assumption that the Court would sustain the other arguments made in the Demurrer.

In sum, the Demurrer is OVERRULED in its entirety.

Cross-Defendants shall filed an answer to the Cross- Complaint within 20 days of notice of this order

The Case Management Conference is continued to August 13, 2026 at 1:30 p.m.

Cross-Complainant to give notice. 10 4 TruAbutment Inc. vs. BioAbutment Inc., 25-01517952

Off-calendar. 10 5 Ortiz vs. Nelson, 24-01439993

Defendant, Lee Wilton Nelson (“Defendant”), moves for an order compelling Plaintiff, Brandon Ortiz (“Plaintiff”), to appear for an independent orthopedic medical examination (“orthopedic IME”) with Michael P. Weinstein, M.D. pursuant to Code of Civil Procedure section 2023.310 and 2032.320.

Defendant filed multiple versions of the instant motion, but they all seek the same relief.

Defendant contends that Plaintiff alleges multiple injuries, with the relevant alleged physical issues that form the basis of this motion being orthopedic injuries that extend to his back and both feet. Defendant asserts that good cause exists for an orthopedic examination because Plaintiff received multiple epidural steroid injections for his back injury. Defendant asserts that an

orthopedic examination by Dr. Weinstein will not overlap with, and would not be duplicative of, the neurological examination by Dr. Nudleman because Dr. Weinstein’s examination will focus on Plaintiff’s back and feet pain issues, whereas Dr. Nudleman’s examination evaluated Plaintiff from the perspective of a neurologist for alleged head injuries, and that the scope of the examination by Dr. Weinstein is tailored to physical and orthopedic matters of Plaintiff’s back, including but not limited to Plaintiff’s active range of motion and grip strength, none of which are related to the examination by Dr. Nudleman. Defendant additionally contends that good cause is independently satisfied because an orthopedic IME is necessary to evaluate key damages issues—causation, permanency, disability, and future treatment.

Plaintiff contends that this orthopedic IME is duplicative of the first IME and that Defendant fails to show good cause for a second independent medical examination (“IME”) with an orthopedic specialist.

“Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” (Code Civ. Proc. § 2032.020(a).)

A party shall obtain leave of court if a party desires to obtain discovery by a physical examination other than that described in Article 2, commencing with Code of Civil Procedure section 2032.210, or by a mental examination. (Code Civ. Proc., § 2032.310(a).) The court shall grant a motion for a physical or mental examination under Code of Civil Procedure section 2032.310 only for good cause shown. (Code Civ. Proc., § 2032.320(a).) Good cause requires a showing of both: (1) relevancy to the subject matter; and (2) specific facts justifying discovery (i.e., allegations showing the need for the information sought and lack of means of obtaining it elsewhere). (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840; Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group June 2025 update) ¶ 8:1557.)

The defendant has an unqualified right to demand one physical examination in a suit for personal injuries (§ 2032.220, subd. (a)) and the choice of the examining physician generally belongs to the defendant [citation] . . . . Additional physical examinations may be obtained with