Judge: Colin Leis, Case: 21AHCV00030, Date: 2022-08-02 Tentative Ruling

Case Number: 21AHCV00030    Hearing Date: August 2, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Plaintiff/Cross-Defendant James Cheung

RESPONDING PARTY:       Defendants/Cross-Complainants Edmund Louie and Deborah Kotani

Cross-Defendant James Cheung’s Demurrer to Cross-Complainant’s Cross-Complaint

The court considered the moving papers and opposition filed in connection with this motion. No reply was filed.

BACKGROUND

            Plaintiff James Cheung (“Cheung”) filed this action in October 2021 against Defendants Edmund Louie (“Louie”), Deborah Kotani (“Kotani”), and Old Republic Title Company. On January 20, 2022, Louie and Kotani (“Cross-Complainants”) filed a cross-complaint for (1) quiet title, (2) trespass and encroachment and damages, (3) negligent trespass and encroachment, (4) injunctive relief to remove encroachments, and (5) declaratory relief.

            Cheung demurs to each cause of action of the cross-complaint on the basis that each fails to state facts sufficient to constitute a cause of action and that each is uncertain.

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

DISCUSSION

The court finds Cheung’s demurrer is procedurally defective. First, Cheung did not file a declaration showing that he complied with the pre-filing meet and confer requirement set forth in Code of Civil Procedure section 430.41. Although failure to comply with the meet and confer requirements is not a ground to overrule or sustain a demurrer (Code Civ. Proc., § 430.41, subd. (a)(4)), Cheung’s demurrer is also untimely, as it was filed 128 days after service of the cross-complaint. Pursuant to Code of Civil Procedure section 430.40, subdivision (a), the demurrer should have been filed within 30 days after service of the cross-complaint.

Cheung’s contention that his motion to quash stayed the 30-day deadline until the court ruled on his motion to quash is unavailing. First, Cheung’s motion to quash did not preclude him from filing his demurrer. (Code of Civ. Proc., § 418.10, subd. (e).) And second, his motion to quash was itself untimely. Cross-complainants served their cross-complaint on January 19, 2022. Cheung had 30 days to respond, which was February 18, 2022. (Code of Civ. Proc. § 432.10) Even if one adds five days for service by mail, 35 days is February 23, 2022. (Code Civ. Proc., § 428.60, subd. (2).) Cheung served his motion to quash on February 24, 2022 – one day late. Cheung cites no authority that his late motion to quash excused him from timely filing his demurrer.

CONCLUSION

Based on the foregoing, the court overrules Cheung’s demurrer to the cross-complaint as untimely.

The court orders Cheung to file and serve an answer to the cross-complaint within 10 days of the date of this order.

Cross-Complainants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 2, 2022

_____________________________

Colin Leis

Judge of the Superior Court