In re: Dore, Nicholas Austin

9. 26CV00521 In re: Dore, Nicholas Austin

EVENT: Change of name (adult)

The Court is in receipt of the proof of publication and will sign the decree provided.

10. 26CV00588 Law, Kaden et al. v. DeMarais, Christian; et al.

EVENT: Defendants’ Demurrer to Verified Complaint for Gross Negligence and Conversion

The Demurrer is OVERRULED.

Defendants’ Economic Loss Rule Argument is Not Sufficiently Developed The reply cites Aas v. Superior Court (2000) 24 Cal.4th 627, 636-638 for the proposition that one cannot avoid the existence of the contract because of the implications the contract has on tort duty. Aas involved the economic loss rule. Notably, this issue was raised for the first time in the reply, as the Court finds no indication that the economic loss rule was addressed in the moving papers. Further, the reply does not provide any specific analysis as to why the economic loss rule would negate the negligence cause of action.

In any event, Aas does not require a Plaintiff to plead breach of contract, nor is the Court aware of any authority requiring a plaintiff to plead breach of contract when it appears plaintiff may be attempting to avoid the consequences of the economic loss rule. At this stage, whether the economic loss rule applies is extrinsic matter. A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905) Of course, Defendants can plead the economic loss rule and the existence of the contract as an affirmative defense, but for demurrer purposes these issues are extrinsic to the Complaint.

Although Defendants are correct that a copy of the contract or pleading the key terms of the contract are required, that requirement only applies when the complaint alleges a breach of contract cause of action. Because the Complaint does not allege a breach of contract cause of action, this rule is not applicable at this moment.

The Complaint Sufficiently Alleges Duty It is well settled that negligence may be alleged in general terms, see Rannard v. Lockheed Aircraft Corp (1945) 26 Cal.2d 149, 154