Judge: David A. Rosen, Case: 23GDCV01337, Date: 2023-08-11 Tentative Ruling
Case Number: 23GDCV01337 Hearing Date: August 11, 2023 Dept: E
Case No: 23GDCV01337
Hearing Date: 08/11/2023 – 2:00pm
Trial Date: UNSET
Case Name: SARKIS KILADJIAN, an individual, v. RICHARD
CRUZ, an individual; and DOES 1-10 inclusive
TENTATIVE RULING ON
DEMURRER
Moving Party: Defendant, Richard Cruz
Responding Party: Plaintiff,
Sarkis Kiladjian
Moving Papers: Demurrer
Opposition Papers: Opposition
Reply Papers: No Reply
Submitted
RELIEF REQUESTED
Defendant, Richard Cruz, demurs to Plaintiff’s Complaint and each cause of
action upon the grounds and pursuant to CCP §430.10(a); (1) the court has no
jurisdiction of the subject of the cause of action alleged in the pleading; (2)
additionally under section 430.10(b); (3) the person who filed the pleading
does not have the legal capacity to sue; (4) additionally under section
430.10(e); (5) the pleading does not state facts sufficient to constitute a
cause of action; additionally under section 430.10(f); (6) the pleading is
uncertain and including ambiguous and unintelligible and under section
430.10(d); and (7) there is a defect or misjoinder of parties.
BACKGROUND
Plaintiff filed a
Complaint for Unlawful Detainer on 06/27/2023. Defendant, Richard Cruz, was
properly served by substituted service on 07/05/2023.
PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule
3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok
Meet and Confer
A party filing a
demurrer “shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (Code Civ.
Proc., §430.41, subd. (a).) “The parties
shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., §430.41, subd. (a)(2).)
Failure
to sufficiently meet and confer is not grounds to overrule or sustain a
demurrer. (Code Civ. Proc., §430.41(a)(4).)
Here,
Defendant’s motion made no reference of an attempt to meet and confer.
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
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.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law ….” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.)
In a demurrer proceeding, the defects must be apparent on the face of
the pleading or via proper judicial notice.
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed. (Code Civ. Proc., §§ 430.30,
430.70.) 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.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.”
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.” (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.)
Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored
and will only be sustained where the pleading is so bad that defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against
him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague,
“ambiguities can be clarified under modern discovery procedures.” (Ibid.)
TENTATIVE RULING
Both
moving papers and Oppositions papers are poorly written and indecipherable.
Defendant’s demurrer is OVERRULED.
Defendant stated as follows:
The Claim for
Relief for Unlawful Detainer, fails to state facts sufficient to constitute a
cause of action, additionally, thereby depriving the court jurisdiction of the
subject matter, causing a misjoinder or defect in the parties and the pleading
is, "uncertain" “ambiguous” and “unintelligible”. C.C.P. § 430.10
(a).(b), (d), (e} and (f}:
1. The requisite
documents in order to establish a cause of action within the complaint has not
been attached to said complaint,
2. Plaintiff has
failed to draw the complaint in conformance with both law and rule.
3. The pleading
does not state facts sufficient to constitute a cause of action. For an
unlawful detainer based on Unlimited Jurisdiction, the required pleadings and
exhibits are missing. Plaintiff has failed to attach and serve a 30-day
summons; as required under “the Unlimited jurisdiction rules of Court. The
pleading is uncertain. As used in this subdivision, "uncertain” includes
ambiguous and unintelligible. As the Deed and Note are in the name of another
party as the Lender and the payee of the Note and not this Plaintiff;
(Def. Mot. p. 3.)
Here, the Court is
entirely uncertain as to what arguments Defendant is trying to assert. The
Court will not attempt to guess what Defendant’s arguments are. Defendant
provides no legal arguments as to how this Complaint fails to state sufficient
facts, nor how there is no jurisdiction, nor how there is misjoinder. The Court
is also entirely unclear as to what Defendant is arguing about Plaintiff
failing to attach a 30-day summons when there is a proof of service on file
with the Court for the Complaint. Defendant fails to cite legal support for
many of its arguments and it is unclear as to what Defendant is arguing.
Defendant also
incorrectly cites law about summary judgment which is entirely out of place on
this demurrer.
On page 4 of the
demurrer, the Court is entirely uncertain as to what Defendant is arguing about
as far as it is impossible to determine who the proper Plaintiff should be and
whether the stated Plaintiff has standing.
Defendant also
argues that Plaintiff failed to verify the Complaint. Defendant cited CCP §1166(a)(1)-(4)
which states:
(a) The
complaint shall:
(1) Be
verified and include the typed or printed name of the person verifying the
complaint.
(2) Set forth
the facts on which the plaintiff seeks to recover.
(3) Describe
the premises with reasonable certainty.
(4) If the
action is based on paragraph (2) of Section 1161, state the amount of rent in
default.
(5) State
specifically the method used to serve the defendant with the notice or notices
of termination upon which the complaint is based. This requirement may be
satisfied by using and completing all items relating to service of the notice
or notices in an appropriate Judicial Council form complaint, or by attaching a
proof of service of the notice or notices of termination served on the
defendant.
Here, it is
unclear to the Court how Plaintiff failed to verify the Complaint when attached
to the Complaint is a verification with the typed name of the person verifying
the Complaint – Sarkis Kiladjian.
The Court is
unclear about Defendant’s argument about a 5-day summons versus a 30-day
summons as Defendant cited no legal support.
Defendant’s
demurrer is OVERRULED. Defendant is to
e-file and e-serve its Answer to the Complaint within 10 days.
The Court also
encourages Plaintiff to prepare acceptable papers. Many of the arguments
asserted in Plaintiff’s Opposition were conclusory and lacked legal support.
For example, Plaintiff asserted that the Complaint set forth the elements of an
unlawful detainer action but did not explain how in any sort of comprehensible
way supported by legal support. Further, the Court is unclear as to why
Plaintiff is arguing it wasn’t served this demurrer when it appears as if
Plaintiff was served. Further, the Plaintiff mentions how the demurrer is
unsigned, and the Court is unclear what argument Plaintiff is trying to make
because Plaintiff cites no legal authority about what legal effect this fact has,
if any.