Judge: Andrew E. Cooper, Case: 23CHCV01849, Date: 2023-10-23 Tentative Ruling

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Case Number: 23CHCV01849    Hearing Date: October 23, 2023    Dept: F51

DEMURRER

Demurrer Filed: 7/31/23

MOVING PARTY: Defendant Lightstorm Entertainment, Inc. (“Defendant”)

RESPONDING PARTY: Plaintiff Aric Cho, in pro per (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire complaint.

TENTATIVE RULING: The unopposed demurrer is sustained without leave to amend. Defendant’s request for judicial notice is granted.

BACKGROUND 

Plaintiff alleges that he was injured by the content of the film “Avatar: The Way of Water” (“Avatar 2”), which he viewed on 12/16/22. On 12/19/22, Plaintiff filed his complaint against Defendant in a related case, LASC Case No. 22CHCV01431 (“Cho I”). On 6/23/23, the Court sustained Defendant’s demurrer against Plaintiff’s first amended complaint without leave to amend.

On 6/26/23, Plaintiff filed the instant complaint against Defendant. On 7/31/23, Defendant filed the instant demurrer. No opposition has been filed to date.

ANALYSIS

As a general matter, a¿party may respond to a pleading against it by demurrer based on any single or combination of eight enumerated grounds, including¿that¿“the pleading does not state facts sufficient to constitute a cause of action” or is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) 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 Plaintiff’s entire complaint, arguing that Plaintiff’s claims are barred by the doctrine of res judicata, and Plaintiff fails to state facts sufficient to constitute any cause of action, and therefore the complaint is fatally uncertain.

A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Defendant’s counsel declares that on 7/19/23, she telephoned Plaintiff and sent him a meet and confer email regarding the issues raised in the instant demurrer, but the parties were unable to come to a resolution. (Decl. of Jordyn Ostroff ¶ 5.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Res Judicata

Res judicata, or claim preclusion, “applies when (1) the decision in the prior proceeding is final and on the merits, (2) the present proceeding is on the same cause of action as the prior proceeding, and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. Upon satisfaction of these conditions, claim preclusion bars not only issues that were actually litigated but also issues that could have been litigated. (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226 [internal quotations and citations omitted].)

Here, Defendant argues that “this action against Lightstorm is Cho’s second attempt to allege that Lightstorm violated his right of publicity and inflicted emotional distress by making the film Avatar: The Way of Water.” (Dem. 2:11–13.) The Court agrees.

In Cho I, Plaintiff alleged that Defendant used his “manner and character” in the film without his consent, causing him emotional distress, and the Court ultimately entered judgment on the pleadings for Defendant and against Plaintiff. (Cho I FAC 1:24–25, 2:11–15.) Here, Plaintiff alleges that “the cause of action is picturing plaintiff’s childhood for pay and not paying for work.” (Compl. 2:1.)

As Defendant asserts, “a generous reading of the complaint suggests Cho may once again be attempting to allege causes of action for intentional infliction of emotional distress and misappropriation of his likeness. But those causes of action and the allegations underlying them were already addressed by the Court’s order sustaining Lightstorm’s demurrer in Cho I.” (Dem. 1:16–19.) “These causes of action are either identical to or should have been brought in Cho I, in which judgment was entered for Lightstorm.” (Id. at 3:17–18.)

The Court notes that Plaintiff has failed to oppose the instant demurrer. Based on the foregoing, the Court finds that Plaintiff’s claims against Defendant in the instant action are barred by the doctrine of res judicata. Accordingly, the demurrer is sustained on this ground without leave to amend. The Court notes Defendant’s additional arguments regarding the defects in the pleading, including its uncertainty and failure to allege facts sufficient to support any cause of action, but need not reach them based on the foregoing.

CONCLUSION 

The demurrer is sustained without leave to amend.