Judge: Andrew E. Cooper, Case: 24CHCV00790, Date: 2024-10-24 Tentative Ruling

Case Number: 24CHCV00790    Hearing Date: October 24, 2024    Dept: F51

DEMURRER WITH MOTION TO STRIKE

Demurrer and Motion to Strike Filed: 7/12/24

MOVING PARTY: Defendant Fadi Edmond Elzayat, D.D.S. (“Defendant”)

RESPONDING PARTY: Plaintiff Julian Lawrence Colberg (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs against Plaintiff’s entire complaint. Defendant also moves to strike Plaintiff’s prayer for punitive damages.

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend, and the motion to strike is moot.

BACKGROUND

On 3/12/24, Plaintiff filed his complaint against Defendant, alleging the following causes of action: (1) Trespass; (2) Fraud; (3) Negligence; (4) Intentional Infliction of Emotional Distress; (5) Deprivation of Right; (6) Subversion; (7) Mischief/Intentional Indifference & Malice; (8) Assault/Battery; (9) False Imprisonment; (10) Unjust Enrichment; and (11) Racketeering.

On 7/12/24, Defendant filed and served the instant demurrer and motion to strike. On 7/15/24, Plaintiff filed his opposition.[1] No reply has been filed to date.

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” and 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 fails to allege facts sufficient to constitute any of the causes of action contained therein, therefore rendering the complaint 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 7/2/24, she sent Plaintiff a meet and confer letter in an attempt to resolve the issues raised in the instant demurrer and motion to strike but received no response. (Decl. of Yee Lam ¶ 2.) 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.     Factual Sufficiency

Plaintiff alleges against Defendant the following causes of action: (1) Trespass; (2) Fraud; (3) Negligence; (4) Intentional Infliction of Emotional Distress; (5) Deprivation of Right; (6) Subversion; (7) Mischief/Intentional Indifference & Malice; (8) Assault/Battery; (9) False Imprisonment; (10) Unjust Enrichment; and (11) Racketeering.

Here, Defendant argues that “Plaintiff’s Complaint is unintelligible and consists of nothing more a list of alleged causes of action without any supporting facts or allegations.” (Dem. 6:5–6.) “In the present case, the plaintiff has failed even the most basic pleading requirements. The entirety of the complaints consists of one page stating eleven causes of action by their name only. There are no factual allegations as to proper venue and parties and most importantly there are no facts and/or allegations at all to support any of the causes of action.” (Id. at 7:9–12.)

Upon review of Plaintiff’s one-page complaint, the Court agrees with Defendant that Plaintiff has failed to state any substantive factual allegations. Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute any causes of action against Defendant. Accordingly, the demurrer is sustained against the entire complaint on this basis.

C.    Uncertainty

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)

Here, Defendant argues that the complaint is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). As the complaint is devoid of any factual allegations against Defendant, the Court agrees with Defendant, and finds that the complaint is fatally uncertain. Accordingly, the demurrer is sustained against the entire complaint on this basis.

LEAVE TO AMEND

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Based on the defects outlined above including the uncertainty of the complaint, the demurrer is sustained without leave to amend.

MOTION TO STRIKE

Here, as the Court sustains the demurrer, the to strike is therefore moot.

CONCLUSION

The demurrer is sustained without leave to amend and the motion to strike is moot.