Judge: Barbara M. Scheper, Case: 21STCV22693, Date: 2022-12-23 Tentative Ruling

Case Number: 21STCV22693    Hearing Date: December 23, 2022    Dept: 30

Angel vs. Fernandez, et. al., Case No. 21STCV22693 

Tentative Ruling re:  Cross-Defendant’s Demurrer to First Amended Cross-Complaint

Cross-Defendant Fidelity National Title Company demurs to the First Amended Cross-Complaint of Cross-Complainants Alvin Bautista Fernandez, George W. Angel, George C. Fernandez (collectively, Cross-Complainants). The demurrer is sustained.

In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

Cross-Complainants added Fidelity to the FACC through a Doe amendment on September 28, 2022. Cross-Complainants appear to have added Fidelity to all causes of action in the FACC, which include Stalking, Intentional Infliction of Emotional Distress, Breach of Fiduciary Duty, and other torts. (FACC ¶ 7.) As Fidelity points out, there is not a single allegation in the FACC that concerns Fidelity, nor any indication of how Fidelity is related to the matters alleged.

Cross-Complainants concede that the FACC is deficient as to Fidelity and request leave to file a Second Amended Cross-Complaint. Cross-Complainants must seek leave to amend the FACC via a noticed motion. (Code Civ. Proc. § 472, subd. (a).) Cross-Complainants must also request any continuance of trial through a noticed motion or ex parte application. (Cal. Rules of Court, rule 3.1332(b).)