Judge: Bruce G. Iwasaki, Case: 22STCV38717, Date: 2023-02-15 Tentative Ruling

Case Number: 22STCV38717    Hearing Date: February 15, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             February 15, 2023

Case Name:                Marzina Daniel v. Credit Corp Solutions, Inc., Assignee of Compass Bank

Case No.:                    22STCV38717

Motion:                       Demurrer

Moving Party:             Defendant Credit Corp Solutions, Inc.

Opposing Party:          Unopposed / Plaintiff Marzina Daniel

Background

            This is a single-count form complaint for “intentional tort.”  Marzina Daniel (Plaintiff or Daniel) alleges that Credit Corp Solutions (Defendant) “has continually harassed plaintiff over a debt that plaintiff never incurred, or applied for, causing plaintiff to endure and suffer extreme mental, emotional and financial hardship.”  No other facts are alleged.

            Defendant demurs to the Complaint, arguing there are insufficient facts in the pleading to state a cause of action.  Daniel did not file an opposition but instead filed a First Amended Complaint.  In addition, Daniel then filed a “Notice Requesting the Court to take Defendant’s Demurrer to Plaintiff’s Complaint Off the Scheduled Calendar Date of Feb 15 2023.”  Defendant filed a reply, correctly noting that the only change in the amended pleading was an increase in the demand of damages. 

            Defendant’s counsel’s declaration indicates that the parties were unable to meet and confer. (Boone Decl., ¶¶  3-4.)  Nevertheless, insufficient meet-and-confer efforts shall not be grounds to overrule or sustain the demurrer.  (Code Civ. Proc., § 430.41, subd. (a)(4).)

Legal Standard

            A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ. Proc., § 452.)  The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) 

Discussion

            Plaintiff requests that the Court take the demurrer off calendar because of the filing of the First Amended Complaint.  Ordinarily, the filing of an amended complaint supersedes the original complaint.  (See Code Civ. Proc., § 472; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.)  Thus, if an amended complaint is filed, the demurrer is taken off calendar as moot.  (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505-06.) 

            Here, however, Plaintiff made no actual changes to the Complaint apart from increasing his request for damages.  Code of Civil Procedure section 472 permits a plaintiff to amend his complaint once “as of course” without leave of court “after a demurrer . . . is filed but before the demurrer . . . is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer.”  “The purpose is to facilitate prompt correction of errors or deficiencies in the original pleading . . . [and] enables plaintiff to concede any error or objection to the complaint raised by the defendant, . . . and immediately draft and file an amended complaint.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶¶ 6:602-6:603.)

            Plaintiff did not concede any error because the Amended Complaint repeats verbatim the same factual allegations of the original Complaint.  Therefore, the Court does not find that Code of Civil Procedure section 472 operates to “moot” the demurer and reaches the merits of the arguments.  (Cf.  Baltin v. James (1995) 36 Cal.App.4th 1193, 1205, overruled on other grounds in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 750 [discussing that a plaintiff may be required to explain inconsistent allegations under the sham pleading doctrine].)  Indeed, it appears that Plaintiff engaged in a delaying tactic to avoid a ruling on the demurrer.  The Court takes a dim view of such conduct.

            Plaintiff fails to allege facts sufficient to state a cause of action.  He fails to identify the legal theory of his claim and fails to set forth facts concerning Defendant’s alleged conduct, and how and when it occurred. 

            The demurrer is sustained with 20 days leave to amend.