Judge: Christian R. Gullon, Case: 22PSCV00893, Date: 2023-08-09 Tentative Ruling
Case Number: 22PSCV00893 Hearing Date: January 11, 2024 Dept: O
Tentative Ruling
(1) PLAINTIFF’S DEMURRER TO AMENDED ANSWER
OF DEFENDANTS JOHN TODD AND TODD MEMORIAL CHAPEL, INC. TO PLAINTIFF MARIA
VINE’S THIRD AMENDED COMPLAINT is OVERRULED.
(2) PLAINTIFF’S MOTION TO STRIKE PORTIONS
OF THE AMENDED ANSWER OF DEFENDANTS JOHN TODD AND TODD MEMORIAL CHAPEL, INC. TO
PLAINTIFF MARIA VINE’S THIRD AMENDED COMPLAINT is DENIED.
Background
This case
pertains to a decedent’s funeral request. Plaintiff Maria Vine alleges the
following against Defendant John Todd: Plaintiff’s mother (“Decedent”) made
funeral and interment arrangements with Todd Memorial. Plaintiff alleges that on
May 10, 2018, Defendant breached the funeral agreement by failing to give
Decedent to a Catholic mass rosary combo.
On August 22,
2022, Plaintiff filed the instant action asserting the following causes of
action (COAs):
On September
26, 2022, Defendant filed a Demurrer.
On October
20, 2022, Plaintiff filed a First Amended Complaint (“FAC”), asserting a new
cause of action for Fraudulent Concealment.
On January
23, 2023, the court sustained in part and overruled in part Defendant’s
demurrer, giving leave to amend only as to the individual defendant.
On February
21, 2023, Plaintiff filed her Second Amended Complaint (“SAC”), which
Defendants again demurred to. During the April 19, 2023 hearing on the demurrer
(which the court’s tentative was to overrule), the court determined it moot as
Plaintiff made an oral request to file a third amended complaint (TAC), which
the court granted.
On June 21,
2023, Defendants filed a demurrer to the TAC, adding a cause of action (the
third COA) for fraudulent concealment (for a total of six COAs).
On August 2,
2023, Plaintiff filed a ‘MOTION TO STRIKE DEFENDANTS’ DEMURRER TO THIRD AMENDED
COMPLAINT.’
On August 9,
2023, the court OVERRULED Defendants’ demurrer to the TAC.
On September
13, 2023, the court found Plaintiff’s motion to strike Defendant’s demurrer to
the TAC moot.
On September
25, 2023, Plaintiff filed a demurrer and motion to strike (MTS), which the
court on 10/25/23 sustained in part and denied/granted in part.
On November
27, 2023, Defendants filed their third answer.
On December
6, 2023, Plaintiff filed the instant demurrer and MTS.
On December
28, 2023, Defendants filed an amended third answer. That same day, Defendants
filed their oppositions to the demurrer and MTS.
On January 4,
2024, Plaintiff filed her reply.
Discussion
I.
Demurrer
to Defendants’ Answer
Plaintiff Maria Vine demurs to the
Second Amended Answer of Defendants John Todd and Todd Memorial Chapel, Inc. to
Plaintiff Maria Vine’s Third Amended Complaint, as to the First Affirmative
Defense for Statute of Limitations, the Third Affirmative Defense of
No Liability of Individual for Corporate Acts, and the Fifth Affirmative
Defense regarding Evidence of Defendants’ Financial Condition, as these
three affirmative defenses are not sufficient to constitute a defense. (Motion
p. 3.)
At the outset, as stated in the court’s
previous ruling, should Plaintiff adhere to improper motion practices, any
arguments would be waived. But Plaintiff’s filings are again replete with legal
citations, do not provide an adequate analysis, and cites to out-of-state authority.
For example, Plaintiff does not explain how the pleading of each defense
does not “constitute a defense” or is “uncertain,” and she inexplicably cites
Florida law for her belief that the pleading does not put her on notice as to
the content of the defenses.
Therefore, the demurrer is OVERRULED in
its entirety.
Motion to Strike
Plaintiff Maria Vine moves to strike Defendants’ Second
Affirmative Defense for Lack of Standing/Lack of Privity and the Fourth
Affirmative Defense for Contractual Modification.
4th
Affirmative Defense
The MTS Defendants’ Fourth Affirmative Defense (Contractual
Modification) is MOOT because Defendants have filed their Third Amended Answer
deleting this defense (Cal. C.C.P. § 472), making plaintiff’s motion to strike
the Fourth Affirmative Defense moot.
To the extent that Plaintiff in Reply argues that the reliance
upon CCP section 472 is unfound as Defendants have already once amended their
answer during the meet and confer process, CCP section 472 applies when an
amended pleading is filed. (See Cal. Code Civ. Proc. § 472
[“A party may amend its pleading once without leave of the court at any time
before the answer, demurrer, or motion to strike is filed, or after a demurrer
or motion to strike is filed but before the demurrer or motion to strike is
heard if the amended pleading is filed and served no later than
the date for filing an opposition to the demurrer or motion to strike.”
(emphasis and underline added.)
Here, Defendants did not file an amended answer without
leave of court.
Therefore, the MTS is moot as to the 4th defense.
Second Affirmative Defense
The 2nd affirmative defense reads as follows:
Plaintiff’s causes of action are barred because she does
not have standing to bring this case. Plaintiff did not enter into the contract
with Defendants and has failed to attach any agreement showing that Plaintiff
has a right to recover for the alleged breach of contract.
Plaintiff moves to strike Defendants’ 2nd
Affirmative Defense on the grounds that “Plaintiff isn't seeking damages for
breach of contract for herself, but on behalf of the decedent, Ascension
Garcia, who had a legally binding preneed contract with the Defendants.”
(Motion p. 3:12-15.)
But, as noted by Defendants in opposition, Plaintiff’s own pleading
belies her argument because she has filed the lawsuit as the decedent’s
“personal representative” and as “beneficiary,” i.e., in her individual
capacity. To the extent Plaintiff has filed a reply, it is largely similar to
the motion in that it cites to numerous authority (notably, non-contract cases)
without providing an analysis.
Therefore, the motion to strike is DENIED.
Conclusion
Based on the foregoing, the demurrer is overruled and the
motion to strike to denied.