Judge Cherol J. Nellon, Case Number: 22STCV07024, Date: 2023-08-23 Tentative Ruling

Judge: Cherol J. Nellon, Case: 22STCV07024, Date: 2023-08-23 Tentative Ruling

Case Number: 22STCV07024 Hearing Date: August 23, 2023 Dept: 14

Case Background

Plaintiffs Cecil Elmore (“Elmore”) and Gurkirn Hundal (“Hundal”) allege that Defendants have harassed and assaulted Plaintiffs by pointing firearms at them, vandalizing their door security camera, and making false statements about them to their landlord. Plaintiffs further allege that the landlord has done nothing to prevent this harassment.

This is a consolidated proceeding involving seven cases brought by the Plaintiffs against the same set of defendants.

Active Pre-Consolidation Pleadings

Case No. 22 STCV 11827

On September 29, 2022, Defendants Knowles Security, Inc. (“Knowles”), Jose Sandin (“Sandin”) and Joe Zuniga filed their Cross-Complaint for (1) Equitable Indemnity, (2) Implied Indemnity, (3) Express Indemnity, (4) Breach of Contract, and (5) Declaratory Relief against Cross-Defendants Rosslyn Lofts Housing Partners, LP (“Rosslyn Lofts”) and ROES 2-50.

This Cross-Complaint has yet to be served. No responsive pleading is currently on file.

Case No. 22 STCV 12021

On September 29, 2022, Defendants Knowles, Sandin, and Joe Zuniga filed their Cross-Complaint for (1) Equitable Indemnity, (2) Implied Indemnity, (3) Express Indemnity, (4) Breach of Contract, and (5) Declaratory Relief against Cross-Defendants Rosslyn Lofts and ROES 2-50.

This Cross-Complaint has yet to be served. No responsive pleading is currently on file.

Active Post-Consolidation Pleadings.

On March 8, 2023, this court ordered Case Nos. 22 STCV 07024, 22 STCV 11827, 22 STCV 11832, 22 STCV 11834, 22 STCV 12021, 22 STCV 18987, and 22 STCV 27745 consolidated for all purposes.

On June 8, 2023, Plaintiffs filed their Third Amended Form Complaint (“TAC”) containing 44 causes of action for Negligence (Nos. 1, 7, 10, 12-13, 17, 19-20, 22, 27, 29-30, 33, 35, 39, and 43), Intentional Tort (Nos. 2-4, 6, 8-9, 11, 15-16, 18, 21, 23-26, 28, 34, 36, 38, and 40-42), and Premises Liability (Nos. 5, 14, 31-32, 37, and 44).

The named Defendants are Valerie Sosa (“Sosa”), Ruben Islas (“Islas”), Rosslyn Lofts, Christopher Steward (“Steward”), Logan Property Management, Inc. (“Logan Property”), The Amerland Group, LLC (“Amerland”), Knowles, Sandin, Joe Zuniga, Kevin Zuniga (together “Zunigas”), Tyrone Jenkins (“Jenkins”), Keandre Stephenson (“Stephenson”), Michael Vasquez (“Vasquez”), Martha Enriquez (“Enriquez”), Bethany Spooner (“Spooner”), Je T’aime Bradshaw (“Bradshaw”), Sherry Dicko (“Dicko”), Gonzalo Rivera (“Rivera”), Joel Jimenez (“Jimenez”), Logan Capital Advisors, LLC (“Logan Capital”), Harold Beard, Brian Hsiao, Alico Security Group, Inc., Edgar Antonyan, Araceli Castillo, Chase Protective Services, Inc., Wendy Contreras, Dewey Services, Inc., Luther Gadson, Rachel Gilgar, Domonick Lawrence Guy, Melinda Johnson, Xavier Jones, Richard Lavin, Sara Lopez, Ruby Montoya, Hughford Muhammad, Master Muhammad, Tonua Newsome-Austin, Cynthia Parry, Jose Ramirez, RBW Security Services, Inc., Gonzalo Rivera, Manal Sabry, Marie Sfair, Jangbir Singh, Michelle Tseibos, Thomas Paul White, Danielle Williams, Joel Himenez, Gladys Boateng, Doe 4 aka Ricky, Doe 5 aka Daniel, and DOES 1-50.

Trial Date

No trial date has yet been set.

(1) Security Demurrer

Defendant Knowles is a security company. Defendants Sandin, Zunigas, Jenkins, and Stephenson are alleged to be employees or agents of Defendant Knowles.

Defendants Knowles, Sandin, Zunigas, Jenkins, and Stephenson now demur to the 20^th-21^st, 24^th-27^th, 29^th -31^st, 33^rd, 35^th, and 38^th-40^th causes of action in the TAC, on the grounds that there are insufficient facts stated to support any of these causes of action.

Decision

The demurrer is CONTINUED to September 28, 2023 at 8:30 am. Counsel are to re-serve the papers. Plaintiff may file a new opposition within the time limits contained in Code of Civil Procedure § 1005.

Discussion

Plaintiffs argue that the demurrer was untimely filed. This is incorrect. Code of Civil Procedure § 430.40(a) gives a party 30 days from the date of service to file a demurrer. Code of Civil Procedure § 1010.6(a)(3)(B) extends that period by two court days when service is done by email.

The TAC was served on Defense counsel by email on June 8, 2023. (Proof of Service filed June 8, 2023). 30 days thereafter would be July 8. That was a Saturday, which meant that the deadline for filing a demurrer was extended to the following Monday, July 10. Code of Civil Procedure §§ 12a(a) & 12b. Two court days after that would be July 12. The demurrer was filed on July 11. It is timely.

Two other procedural arguments raised by Plaintiffs lack merit. The Declaration of Eric S. Eliot complies with California Rules of Court Rule 3.1115, which only requires that the caption identify the declarant and the proceeding the declaration is filed in connection with. And while California Rules of Court Rule 3.1113(f) requires that memoranda which run to more than 10 pages should include a table of contents and a table of authorities, the Rule does not empower the court to reject pleadings which fail to include those tables.

Finally, Plaintiffs argue that the demurrer was not properly served, because they never stipulated to electronic service. Here, Plaintiffs are correct. The service statutes permit email service on a self-represented litigant only if there has been express consent to service by email. Code of Civil Procedure § 1010.6(a)&(c); California Rules of Court Rule 2.251(a)&(c)(3)(B). Express consent may be given in one of two ways: (1) by serving and filing a notice (Section 1010.6(c)(3)(i); Rule 2.251(b)(1)(A)) or (2) by signing up with the court’s electronic service provider and giving notice to all parties (Section 1010.6(c)(3)(ii); Rule 2.251(b)(1)(B)). Neither of those things has happened.

Conclusion

Because Plaintiffs have never expressly consented to electronic service as required by Code of Civil Procedure § 1010.6(c)(3) and California Rules of Court Rule 2.251(b)(1), Defense may not serve them by email. This demurrer was not properly served. It is therefore CONTINUED to September 28, 2023, at 8:30 am. Defense counsel are to re-serve the papers. Plaintiff may file a new opposition within the time limits contained in Code of Civil Procedure § 1005.

(2) Security Motion to Strike

Defendants Knowles, Sandin, Zunigas, Jenkins, and Stephenson now move this court for an order striking the claim for punitive damages from the TAC.

Decision

For the reasons set forth in the discussion on the demurrer, the motion is CONTINUED to September 28, 2023 at 8:30 am. Counsel are to re-serve the papers. Plaintiff may file a new opposition within the time limits contained in Code of Civil Procedure § 1005.

(3) Landlord Demurrer

Defendant Rosslyn Lofts is Plaintiff Elmore’s landlord. Defendants Logan Property, Logan Capital, Amerland, Islas, Vasquez, Enriquez, Spooner, Bradshaw, Dicko, Rivera, and Jimenez are alleged to be employees or agents of Defendant Rosslyn Lofts.

Defendants Rosslyn Lofts, Logan Property, Logan Capital, Amerland, Islas, Vasquez, Enriquez, Spooner, Bradshaw, Dicko, Rivera, and Jimenez now demur to the 1^st-6^th, 9^th-15^th, 24^th-27^th, 29^th-33^rd, 35^th-40^th, and 43^rd-44^th causes of action in the TAC, on the grounds that there are insufficient facts stated to support any of these causes of action and the claims themselves are uncertain.

Decision

For the reasons set forth in the discussion on the demurrer above, the motion is CONTINUED to September 28, 2023 at 8:30 am. Counsel are to re-serve the papers. Plaintiff may file a new opposition within the time limits contained in Code of Civil Procedure § 1005.

(4) Landlord Motion to Strike

Defendants Rosslyn Lofts, Logan Property, Logan Capital, Amerland, Islas, Vasquez, Enriquez, Spooner, Bradshaw, Dicko, Rivera, and Jimenez now move this court for an order striking the claim for punitive damages from the TAC.

Decision