Judge: Frank M. Tavelman, Case: 20BBCV00113, Date: 2023-11-03 Tentative Ruling

SUBMITTING ON THE TENTATIVE
Generally, the Court will post tentative rulings prior to a hearing; however, the Court does not always do so.  If the parties wish to avoid a court appearance and submit on the tentative ruling, then all counsel must confer and agree to do so.   Each counsel must then contact the Court and advise they have spoken to opposing counsel and will submit on the tentative.  All counsel seeking to submit on a tentative must call Dept A no later than 8:45 a.m. on the hearing day or in lieu may indicate the party is submitting during calendar check-in. Notice of the ruling must be served as indicated in the tentative. If any party declines to submit on the tentative ruling, then all parties should appear at the hearing in person or remotely.
 

Case Number: 20BBCV00113    Hearing Date: November 3, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

This case concerns a 2020 business dispute between Cross-Complainant Kathy Smith (‘Smith”) and Cross-Defendant Arnold Abramyan. Smith has since settled her claims against all Cross-Defendants save for the City of Los Angeles Department of Cannabis Regulation and the City of Los Angeles Finance Department (collectively “the City”). (See March 20, 2023 Minute Order for Non-Jury trial and Final Status Conference.) Smith’s claims against the City include causes of action for Cancellation of Documents, Declaratory Relief, Equitable Indemnity, Contribution, Implied Indemnification, and Comparative Indemnity.

On May 22, 2023, the City filed a demurrer to Smith’s Cross-Complaint. The City demurs on the grounds the entire complaint is uncertain and that each cause of action asserted against them is factually deficient. The hearing was initially set for August 4, 2023 but was continued to November 3, 2023 to allow Smith, currently in pro per, time to secure counsel in the matter.

Smith and the City thereafter stipulated to continue the matter another four months, stating Smith has still not retained counsel but soon would. Smith further stated her proposed counsel would be unavailable on the November 3 hearing date but did not submit any declarations of proposed counsel attesting to this fact. This stipulation was rejected for failure to submit attorney declarations as to the unavailability of counsel.  Plaintiff thereafter never submitted the declaration requested.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

The Court construes Smith’s failure to oppose the Demurrer as an abandonment of the claims or an admission the Demurrer has merit. (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].)

Although the Demurrer is unopposed, the Court finds that Smith should be given an opportunity to cure the defects in the Cross-Complaint that were raised in the Demurrer. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Accordingly, the demurrer is SUSTAINED with 20 days’ leave to amend.  Parties may stipulate to an extension for filing an amended complaint beyond the 20 days’ leave as permitted by the Court.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

City of Los Angeles Department of Cannabis Regulation and City of Los Angeles Finance Department’s Demurrer came on regularly for hearing on November 3, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.  

THE CASE MANAGEMENT CONFERENCE SCHEDULED FOR NOVEMBER 3, 2023 IS CONTINUED TO FEBRUARY 20, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE THE DEFENDANT, THE CITY OF LOS ANGELES IS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  November 3, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles