Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

  Plaintiff filed a complaint-contract on form PLD-C-001 which is two pages long.  In item 7 of the form, he indicates he is “SEEKING IMMEDIATE REMEDY ON EVICTIONS SUMMONS CASE NUMBER 24SMUD00395.”  In items 8 and 9 of the form, he indicates he is also suing for unjust enrichment and breach of the covenant of good faith and fair dealing.  But contrary to the instructions on item 8, he has not attached separate forms for these causes of action.  On item 10, prayer for relief, he states he is seeking “QUANTUM MERUIT CLAIM OF STIPULATED AGREEMENT EXHIBITED PLUS 30% DAMAGES ON REWARDS.”  There is no other description of the stipulated agreement or any other contract on which he is suing.  There are no facts stated in support of any of the claims.     

This hearing is on Defendant USG Corporation’s demurrer to the Complaint.  Defendant demurs generally to the Complaint on the grounds that Plaintiff has failed to state facts sufficient to constitute a cause of action.  Defendant demurs specially to the complaint on the grounds that it is uncertain, and also to the extent Plaintiff is alleging a breach of contract claim, it cannot be ascertained whether the contract is written, oral or implied.   

OVERSIZE BRIEF 

Plaintiff filed a 56 page opposition, well in excess of the 15 page limit for opposition briefs.  (Cal. Rules of Court, rule 3.1113 subd. (d) (“Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.”).)  “A memorandum that exceeds the page limits of these¿rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113 subd. (g).)  "[A] trial court has broad discretion to accept or reject late-filed papers." (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker¿(2016) 2 Cal.App.5th 252, 262.)  Accordingly, a trial court also has discretion to reject oversize briefs.  The Court exercises its discretion here to decline to consider Plaintiff’s oversize opposition.   

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A general 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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer, the moving party “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(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)   

Defendant submits the Declaration of Nancy Erwin Buck which states Plaintiff and defense counsel met and conferred by telephone on May 7, 2024, which is less than five days before the date the demurrer was filed (on May 9, 2024).  Moreover, the declaration fails to state whether counsel discussed the specific grounds on which the demurrer was based.  Notwithstanding, even though counsel has not complied with the requirements of § 430.41, the Court cannot sustain or overrule a demurrer on the ground of an insufficient meet and confer.   (Code Civ. Proc. § 430.41(a)(4).)    

DISCUSSION 

Code Civ. Proc. § 430.10(e) provides for a general demurrer on the grounds that “the pleading does not state facts sufficient to constitute a cause of action.”  The 2-page form complaint here fails to state any facts, much less facts that would support the causes of action listed in the form complaint.   

The Court also agrees with Defendant that the form complaint is uncertain.  Defendant cannot reasonably respond to the form complaint which contains no allegations and includes only a fleeting reference to various disconnected claims.  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury, 14 Cal.App.4th at 616.)¿   

To the extent the complaint alleges a breach of contract claim, it is also uncertain as Plaintiff has not alleged whether the contract is written, oral or implied by conduct.  (Code Civ. Proc. § 430.10(g) (one may demur when “in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct”).)   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer with 20 days’ leave to amend.   

IT IS SO ORDERED. 

 

DATED:  June 14, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court