Judge: Cherol J. Nellon, Case: 23STCV08275, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV08275    Hearing Date: October 18, 2023    Dept: 14

Instant Request

            Defendant Cohen now demurs to the FAC on the ground that it fails to state facts sufficient to constitute a cause of action.

Decision

The demurrer is TAKEN OFF-CALENDAR. Defendant Cohen to Answer within 10 days.

Governing Statute

            Code of Civil Procedure § 1541 provides:

“Any person aggrieved by a decision of the Controller or as to whose claim the Controller has failed to make a decision within 180 days after the filing of the claim, may commence an action, naming the Controller as a defendant, to establish his or her claim in the superior court in any county or city and county in which the Attorney General has an office. The action shall be brought within 90 days after the decision of the Controller or within 270 days from the filing of the claim if the Controller fails to make a decision. The summons and a copy of the complaint shall be served upon the Controller and the Attorney General and the Controller shall have 60 days within which to respond by answer. The action shall be tried without a jury.”

Discussion

            A demurrer is not an available responsive pleading in this type of case. The statute which authorizes this action provides that the Defense should “respond by answer.”

            The demurrer here illustrates the reason for the rule. Defense argues that Plaintiff hasn’t pled facts which would prove his claim. But a complaint is not required to plead evidentiary facts. C.W. Johnson & Sons, Inc. v. Carpenter (2020) 53 Cal.App.5^th 165, 169. All that Plaintiff needs to plead to meet the statutory authorization is that he made a claim which the Controller either denied or ignored. The validity of that claim is a matter to be decided on the presentation of evidence, not the pleadings.

Conclusion

            Because the only authorized response under the statute is an Answer, the demurrer is TAKEN OFF-CALENDAR. Defendant Cohen is to file an Answer within 10 days.