Judge: Elaine Lu, Case: 22STCV38724, Date: 2023-08-15 Tentative Ruling

Case Number: 22STCV38724    Hearing Date: February 16, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On December 13, 2022, Plaintiff Shirrell Coleman (“Plaintiff”) filed the instant action against Defendant Wells Fargo Bank, N.A. (erroneously sued as Bank Wells Fargo) (“Defendant”) entitled “COMPROMISED BANK ACCOUNT.”

            On December 30, 2022, the instant action was deemed non-complex.  (Minute Order 12/30/22.)  On January 18, 2023, the instant action was assigned to the instant department.  (Minute Order 1/18/23.) 

            On March 13, 2023, Defendant filed a demurrer to the complaint.  On April 11, 2023, Plaintiff filed a First Amended Complaint against Defendant entitled “AMENDED COMPLAINT” -- “COMPROMISED BANK ACCOUNT.”  On August 15, 2023, the Court sustained Defendant’s demurrer to the First Amended Complaint with leave to amend.  (Order 8/15/23.)

            On September 28, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendant entitled “AMENDING COMPLAINT – PROOF OF MY BANK ACCOUNT.”  On September 28, 2023, Plaintiff filed a document entitled “Amending Dumurr [sic] Complaint to Puinuuv [sic],” claiming that Defendant has no right to file a demurrer.  On October 6, 2023, Plaintiff filed a document entitled “Proof of Bank Accounts.”

            On November 8, 2023, Defendant filed the instant demurrer to the SAC.  No opposition or reply has been filed.

Allegations of the Operative Complaint

            The SAC alleges in all capitalization that:

            “[Plaintiff] ha[s] a few bank account at [Defendant] for twenty one years.  [Plaintiff] ha[sn’t] touched a dime of it since the accounts was [sic] open since October 20 or 25 of the year 1995 or 1996[.] The municipal court funded the bank account beacause [sic] of a lawsuit police brutality[.]  Hers [sic] some of the bank account number[.]  Now I have 2 checking accounts and 2 CD accounts[.] [Plaintiff’s] leving [sic] you the accounts on another page attach[ed] to this[.]  [Plaintiff’s] bank accounts are closed at Wells Fargo but [Plaintiff’s] funds are still there[.] They where [sic] never removed. [Plaintiff is] asking for [her] funds please[.]  Here are some numbers to bank accounts[.]”  (SAC, [capitalization removed].)  There is no attachment to the SAC identifying any bank account numbers.

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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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 Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  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.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “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.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)

Defendant has satisfied the meet and confer requirement.  (Le Decl. ¶ 4.)

Discussion

Entire Complaint – Uncertainty

            Defendant asserts that the entire complaint is uncertain.

            A special demurrer for uncertainty, Code of Civil Procedure §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.)  Further, a pleading is subject to a demurrer for uncertainty, when it is unintelligible by “attempt[ing] to state numerous causes of action in a very loose and rambling manner without any attempt at separately stating them.”  (Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73.)  However, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Khoury, supra, 14 Cal.App.4th at p.616.)

            Here, the SAC includes some facts.  Plaintiff alleges that she has “a few bank accounts” with Defendant for twenty-one years.  For one of the accounts, Plaintiff alleges that she has not touched the funds since the account’s opening in 1995 or 1996, and the funds for that account derived from a police brutality lawsuit.  Finally, Plaintiff alleges that her bank accounts with Defendant are now closed, but Plaintiff’s funds were never removed and are still there.

However, the SAC fails to allege sufficient facts to state a claim.  Many facts are still missing.  First, the SAC switches intermittently between the singular and plural form of “account.”  As a result, it is unclear whether there is a single account at issue or multiple accounts.  Notably, the SAC fails to identify a single account number.  Similarly, the SAC switches intermittently between the past tense and the current tense, making it unclear whether Plaintiff still has bank accounts with Defendant or whether all of her accounts with Defendant have been closed.  (SAC [“I have a few bank accounts at Wells Fargo Bank for twenty-one years”] [italics added].)  The SAC fails to allege who closed Plaintiff’s bank account or accounts with defendant or how Plaintiff’s bank account or accounts were closed – whether Plaintiff herself voluntarily closed the account or accounts or whether Defendant closed the account or accounts without her consent.  The SAC fails to identify when Plaintiff’s bank account or accounts with Defendant were closed and what happened to the funds in the bank account or accounts upon closure of the bank account(s).  The SAC also fails to allege how much was in each bank account that was closed.  The SAC alleges that Plaintiff now has two checking and two CD accounts but does not explain the relevance of these other accounts, including whether these other accounts are also with Defendant and the status of these other accounts.  Critically, the SAC fails to allege what if any wrongful conduct Defendant engaged in such as to warrant any liability. 

Finally, the operative SAC does not include any numbering or identification of causes of action as required.  “Each separately stated cause of action, count, or defense must specifically state: [¶] (1) Its number (e.g., ‘first cause of action’); [¶] (2) Its nature (e.g., ‘for fraud’); [¶] (3) The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).”  (Cal. Rules of Court, Rule. 2.112.)  The fact that Plaintiff is pro per does not excuse her failure to identify separate causes of action;  “pro per litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.”  (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)  Rather, in pro per litigants are “entitled to treatment equal to that of a represented party.”  (Ibid.)  Therefore, Plaintiff is required to follow all applicable Rules of Court as expected of a represented party.

            In sum, it is unclear what claim or claims Plaintiff is attempting to assert against Defendant, the wrongful conduct by Defendant that might give rise to liability, and what harm Plaintiff has suffered as a result of Defendant’s conduct.  Accordingly, Defendant’s demurrer for uncertainty is SUSTAINED.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

Here, the Court has already sustained a demurrer to the complaint once.  However, given that substantially more allegations have been added, it may be reasonably possible for Plaintiff to successfully amend the complaint to state a cause of action against Defendant.  Therefore, the court finds it is proper to allow Plaintiffs an opportunity to cure the defects discussed in this order. 

CONCLUSIONS AND ORDER

Based on the foregoing, Defendant Wells Fargo Bank, N.A. (erroneously sued as Bank Wells Fargo)’s demurrer to the Second Amended Complaint is SUSTAINED WITH LEAVE TO AMEND.

Plaintiff is to file and serve an amended complaint within thirty (30) days of notice of this order.

The case management conference is continued to April 25, 2024 at 8:30 am.

Moving Party is to give notice and file proof of service of such.

DATED: February ___, 2024                                                 ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court