Judge: Alison Mackenzie, Case: 21STCV25562, Date: 2023-12-15 Tentative Ruling
Case Number: 21STCV25562 Hearing Date: December 15, 2023 Dept: 55
NATURE OF PROCEEDINGS: Defendant’s Demurrer to First Amended
Complaint; Plaintiff’s Motion for Leave
to Amend the First Amended Complaint.
Plaintiff may serve and file a Second Amended
Complaint no later than on 1/17/24.
The motion for leave to amend is ordered off calendar
as moot, in light of leave to amend given via the demurrer ruling.
On 7/13/21, RANDALL BERNARD ALLEN (“Plaintiff”), a
self-represented litigant, filed a Complaint against VISTA POINT, INC.
(“Defendant”) and PACIFIC LIFE & ANNUITY SERVICES, INC. (“Co-Defendant”). On 8/24/21, Plaintiff filed a First
Amended Complaint, alleging: Pacific
Life Insurance Company, acting as a subsidiary of the City of Los Angeles,
failed to establish a special needs trust of structured annuity payments due
monthly to Vista Points Inc., thereby creating financial difficulties for
Plaintiff and his son. Plaintiff was
terminated from Social Security benefits, which is a requirement for a Special
Needs Trust account pursuant to the Social Security Act, Section 1614(a)(3)(A),
and 42 USC Section 1382c(a)(3)(A).
Plaintiff qualified to establish his own Self-Settling First-Party
Special Needs Trust Account, under The Special Needs Trust Fairness Act, as
part of the 21st Century Cures Act of 2016.
There were contractual agreements with each party—Plaintiff, Pacific
Life & Annuity Services Inc. and Vista Points, Inc. (Special Needs Trust
Account Administration), but the agreements were violated. The causes of action are: 1) 42 USC
§ 1983 – Equal Protection of the Law, Due Process; and 2) 42 USC § 1983 - Breach of Contract.
On 12/14/21, the Court sustained, without leave to
amend, a similar demurrer of Co-Defendant, based on the demurrer page numbers
and as unopposed, which was upheld on appeal by a remittitur and unpublished
opinion filed in this case on 6/29/23.
Defendant has filed a demurrer to the First Amended
Complaint, on grounds including the following: The uncertain pleading A 42 USC
1983 claim requires allegations of action under color of state law, but the FAC
fails to allege any conduct under color of State law by Defendant and fails to allege
any specific contractual provision or how Defendant breached that provision
under color of state law. However, no
opposition to that demurrer appears in official court records.
Plaintiff filed a motion for leave to file a proposed Second
Amended Complaint. Defendant opposes
that motion, arguing issues including that the California Rules of Court (CRC)
require a copy of the proposed amendment, identification by page, paragraph,
and line number any additions to and deletions from the prior pleading; and a
declaration explaining the purpose and effect of the proposed amendments, why
the proposed amendments are necessary and proper, or when the facts giving rise
to the proposed amendment were discovered.
Notice of continuances of the matters, to this date,
was properly given to the parties via the minutes entered and served on
9/25/23.
DEMURRER
The failure to file a proper and timely opposition in
trial court creates a waiver of the issues on any appeal. Bell v. Am. Title Ins. Co. (1991) 226
Cal. App. 3d 1589, 1602; Cabrini
Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683,
693. A judge in a civil case is not
"'obligated to seek out theories [a party] might have advanced, or to
articulate … that which … [a party] has left unspoken.'" Mesecher v.
Here, the lack of an opposition is a basis for
sustaining the demurrer and allowing leave to amend.
Additionally, the Court bases its ruling on the
merits.
“Section 1983 applies to persons acting ‘under color
of’ state law,… and normally does not apply to private actors,… ‘A private
individual may be liable under section 1983 if she conspired or entered joint
action with a state actor….’ ” Dwight
R. v. Christy B. (2013) 212 Cal.App.4th 697, 714.
General allegations stating that defendants violated a
contract are insufficient, and instead pleaders must state facts showing a
breach. Levy v. State Farm Mutual
Automobile Ins. Co. (2007) 150 Cal. App. 4th 1, 5-6. "[A] pleader must state with certainty
the facts constituting a breach of contract." Melican v. Regents of Univ. of Cal.
(2007) 151 Cal. App. 4th 168, 174. But see
Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal. App.
4th 1, 5 (“Facts alleging a breach, like all essential elements of a breach of
contract cause of action, must be pleaded with specificity.”).
The First Amended Complaint is uncertain as to how the
entity Defendant as trust administrator acted under color of state law, such as
by a conspiracy or joint action.
Additionally, contract provisions breached are not specified in that
pleading (although the proposed Second Amended Complaint is an improvement).
MOTION
FOR LEAVE TO AMEND
Procedurally,
a motion for leave to file an amended pleading must include (1) a copy of the
proposed and numbered amendment, (2) specifications by reference to pages and
lines the allegations that would be deleted and added, and (3) a declaration
specifying the effect, necessity and propriety, date of discovery and reasons
for delay. CRC Rule 3.1324. Decisions to invoke California Rules of
Court, Rule 3.1113 (requiring that a motion have a memorandum with “a statement
of facts, a concise statement of the law, evidence and arguments relied on, and
a discussion of the statutes, cases, and textbooks cited in support of the
position advanced…”), are reviewed under the abuse-of-discretion standard. Quantum Cooking Concepts, Inc. v. LV
Associates, Inc. (2011) 197
Cal.App.4th 927, 932. Unless otherwise
provided, documents filed in support of a motion must consist of a notice and a
memorandum in support. CRC Rule 3.1112.
However, courts may
overlook harmless procedural errors made in the documents or proceedings that
do not affect substantial rights of parties.
CCP §475; Morgan v. AT & T
Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1252; Reedy v. Bussell (2007) 148 Cal. App.
4th 1272, 1289 ("'Procedural defects which do not affect the substantial
rights of the parties do not constitute reversible error….’”); McAllister v. County of Monterey (2007)
147 Cal. App. 4th 253 (court is bound to ignore any ‘defect … in the pleadings
or proceedings which, in the opinion of said court, does not affect the
substantial rights of the parties.’ ”); Zimmerman,
Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal. App. 4th 1466,
1475, 1478 ("In the present case, we do not believe that the decision to
overlook glaring omissions and concessions was warranted."); Luri v. Greenwald (2003) 107 Cal. App.
4th 1119, 1127; Holmes v. California
Nat. Guard (2001) 90 Cal. App. 4th 297, 314; B & P Dev. Corp. v. City of Saratoga
(1986) 185 Cal. App. 3d 949, 953 (“Pleading defects which do not affect
substantial rights of the parties should be disregarded.”); Parker v. Los Angeles (1974) 44
Cal.App.3d 556, 566. See also CRC Rule 2.118(c) (for good cause, courts may accept
noncomplying documents for filing).
The Court has discretion to overlook the procedural
defects, but instead allows Plaintiff to file a different or the same Second
Amended Complaint, to be served and filed by a stated deadline, pursuant to the
demurrer ruling. Thus Plaintiff has the
option to further update and improve the allegations if desired.