Judge: Daniel S. Murphy, Case: 22STCV29054, Date: 2022-12-12 Tentative Ruling

Case Number: 22STCV29054    Hearing Date: December 12, 2022    Dept: 32

BACKGROUND

            On September 7, 2022, Plaintiff Robert Garber filed this action against Defendants Rex Danyluk, Karen Danyluk, Sumie Bates, and Duane Doyle Smith. The complaint alleges causes of action for malicious prosecution, abuse of process, false imprisonment, elder abuse, harassment, conspiracy, and intentional infliction of emotional distress.

            Defendants are neighbors residing in Reseda, California. The action arises from confrontations between Plaintiff and Defendants, which ended in Plaintiff’s arrest and incarceration. According to the complaint, Plaintiff was friends with Defendant Bates and in January 2019 began to help Bates with a lawsuit that Bates was involved in. This required Plaintiff to work at Bates’ home on a daily basis. Bates rented out part of her premises to Defendant Smith. Plaintiff alleges that throughout his time working at Bates’ house, Smith continuously harassed him, which included making homosexual advances.

            Plaintiff also parked his SUV in the neighborhood. Plaintiff alleges that Defendants, specifically Karen Danyluk, disapproved of Plaintiff parking his SUV and painting it. After Smith confronted Plaintiff about this, Plaintiff confronted the Danyluks at their home. Defendants allegedly sought to have Plaintiff’s SUV impounded. Plaintiff showed Rex Danyluk a BB gun that he had in his bag. Upon returning to Bates’ home, Plaintiff confronted Smith and also pulled out the BB gun. Plaintiff allegedly left and returned again, when he was arrested. According to the complaint, Plaintiff was incarcerated from March 28, 2020 to August 5, 2022. Plaintiff alleges that Defendants conspired against him out of hatred for his Israeli heritage.    

            On November 2, 2022, Rex and Karen Danyluk filed the instant demurrer and motion to strike against Plaintiff’s complaint.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendants have complied with the meet and confer requirement.

DISCUSSION

            The complaint contains no facts establishing the elements of the causes of action alleged against the moving Defendants. Beyond giving Plaintiff dirty looks and complaining about Plaintiff’s SUV—actions which are wholly insufficient for any cause of action—the Danyluks are not alleged to have committed any wrongdoing. In fact, Plaintiff admits to brandishing a BB gun at Defendants’ home, which would have justified the arrest that forms the primary basis for Plaintiff’s claims. As a matter of law, Defendants could not have maliciously prosecuted a criminal complaint against Plaintiff. (See Greene v. Bank of America (2015) 236 Cal.App.4th 922, 931 [malicious prosecution requires a criminal or civil action brought without probable cause].) If Defendants did not wrongfully call the police on Plaintiff, there are no facts in the complaint establishing any other basis for wrongdoing. Plaintiff’s opposition provides no support and fails to articulate how the complaint can be amended to resolve the defects.

            Without proper allegations to support any cause of action, the complaint also fails to establish a foundation for punitive damages. Furthermore, punitive damages depend on additional allegations of malice, oppression, or fraud beyond the mere commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.)

CONCLUSION

            Defendants Rex Danyluk’s and Karen Danyluk’s demurrer is SUSTAINED without leave to amend. Defendants’ motion to strike is GRANTED without leave to amend.