Judge: Andrew E. Cooper, Case: 22CHUD00957, Date: 2025-01-24 Tentative Ruling

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Case Number: 22CHUD00957    Hearing Date: January 24, 2025    Dept: F51

DEMURRER WITH MOTION TO STRIKE

MOTION OPPOSING PLAINTIFF’S FIRST AMENDED COMPLAINT

Motions Filed: 10/11/23, 10/19/23

MOVING PARTY: Defendant Michael Moshe Perry, in pro per (“Defendant”)

RESPONDING PARTY: Plaintiff Nasch Canoga LLC (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs against Plaintiff’s entire first amended complaint (“FAC”) and seeks orders striking the entire FAC and for nonsuit.

TENTATIVE RULING: The motion objecting to the FAC is denied. The demurrer is overruled, and the motion to strike is denied. Defendant to file an answer ONLY to Plaintiff’s FAC within 10 days.

Defendant is reminded that “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.” (Cal. Rules of Ct., rule 3.1113(d).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND 

This is an unlawful detainer action. On 8/26/22, Plaintiff filed its unlawful detainer complaint against Defendant. On 11/21/22, Defendant filed his answer and amended answer thereto.

On 12/14/22, Defendant filed a notice of removal of the action to Federal Court. On 12/30/22, the entire action was remanded to State Court. On 10/9/23, Plaintiff filed its first amended complaint for unlawful detainer against Defendant. On 10/11/23, the Court reclassified the action from Civil Limited jurisdiction to Civil Unlimited jurisdiction.

On 10/11/23, Defendant filed a motion “objecting and opposing to” the FAC. On 10/11/23, Defendant filed a demurrer against the FAC. On 10/19/23, Defendant filed a motion to strike the entire FAC. No oppositions have been filed to date.

ANALYSIS

1.      Motion “Objecting and Opposing”

Here, Defendant bases his motion “objecting and opposing to” the FAC on Code of Civil Procedure sections 425.12 and 472. Code of Civil Procedure section 425.12 describes the general provisions for Judicial Council-approved pleading forms. (Code Civ. Proc. § 425.12.) Code of Civil Procedure section 472 provides authority for a party to amend its pleading. Neither of these statutes provide bases for a motion “objecting and opposing to” a pleading, nor does Defendant provide any other legal authority for the motion in his substantive argument. The Court also finds that the relief requested in connection with this motion is unclear. Accordingly, the Court finds no legal basis for the motion “objecting and opposing to” the FAC, and therefore denies the motion.

2.      Demurrer

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Defendant¿demurs to the entire complaint, arguing that Plaintiff falsely alleged that it was a “public agency” in its FAC, and further falsely alleged that the tenancy was terminated for at-fault just cause. (Dem. 8:4–7.) To the extent that Defendant argues against the merits of the facts alleged in the FAC or presents facts extrinsic to the four corners of the FAC, this Court disregards these arguments as they are not properly before the Court at the pleading stage. The Court further notes that Defendant has not properly presented any additional facts via request for judicial notice. (Code Civ. Proc. § 430.70; Cal. Rules of Ct., rule 3.1306(c).) Accordingly, the demurrer is overruled.

3.      Motion to Strike

Under Code of Civil Procedure section 436, the Court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

Here, Defendant repeats his arguments supporting the demurrer in his motion to strike the entire FAC. As the Court overrules the demurrer, it likewise denies the motion to strike.

CONCLUSION 

The motion objecting to the FAC is denied. The demurrer is overruled, and the motion to strike is denied. Defendant to file an answer ONLY to Plaintiff’s FAC within 10 days.