Judge: Frank M. Tavelman, Case: 24NNCV05217, Date: 2025-03-07 Tentative Ruling

Case Number: 24NNCV05217    Hearing Date: March 7, 2025    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify 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 argument is received.  

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

ALLEGATIONS: 

Liz Stewart Barnes (Plaintiff) brings this action against Jessica Ray (Defendant). Plaintiff alleges that Defendant has persistently attempted to seduce Plaintiff’s husband Cooper Barnes. Plaintiff and her family live in the same condominium complex as Defendant, and Defendant serves as the head of the Home Owner’s Association (HOA) for the complex. Plaintiff alleges an ongoing campaign by Defendant to sabotage Plaintiff’s marriage beginning in 2020. Plaintiff alleges that Defendant has, among other things, publicly disparaged Plaintiff to other members of the complex, made false representations in order to obtain a Temporary Restraining Order against Plaintiff, abused her position as the head of the HOA to harass Plaintiff, and violated the Mutual Stay Away Order entered into in LASC Family Court Case No. 24VERO00208.

Plaintiff’s Complaint (which totals 392 pages inclusive of exhibits), includes causes of action for (1) Intentional Infliction of Emotional Distress, (2) Negligent Infliction of Emotional Distress, (3) Defamation of Character, (4) Slander, (5) Libel, and (6) Breach of Contract.

Before the Court is a demurrer to each cause of action in the Complaint on grounds that (1) each cause of action fails to state sufficient facts and (2) each cause of action is uncertain.

Defendant argues that each cause of action is improperly based upon the now defunct legal theories of Alienation of Affection. Defendant additionally argues that each cause of action is barred by law as a function of the litigation privilege and Cal. Civ. Code § 5800.

Plaintiff has not opposed this demurrer, instead filing a Notice of Non-Opposition stating that she found some of the argument raised by Defendant meritorious and intends to amend the Complaint accordingly. In reply, Defendant argues that leave to amend should not be granted because Plaintiff did not amend prior to their deadline to oppose the demurrer and because Plaintiff has articulated no facts upon which amendment can be premised.

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

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 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

Meet and Confer

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review, the Court finds the meet and confer requirements were met here. (Chesney Decl.)

Discussion

Plaintiff’s has signaled they believe certain aspects of the demurrer are meritorious and that they intend to amend the Complaint. As such, all that remains to be adjudicated by the Court is whether Plaintiff should be granted leave to amend. Defendant argues that Plaintiff should not be allowed to do because each cause of action in the Complaint is legally barred such that amendment would not cure the defects present. For reasons stated below, the Court finds this argument unpersuasive.

When a Complaint, liberally construed, can state a cause of action under any theory or there is a reasonable possibility that amendment could cure the defect, it is an abuse of discretion for a judge to deny leave to amend. (Alborzi v. University of Southern California (2020) 55 Cal.App.5th 155, 183.) While the plaintiff bears a legal burden to demonstrate facts upon which amendment may be based, this burden is relaxed where they have had no previous opportunity to amend. (Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 193; Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1539.) Where a plaintiff has had no previous opportunity to amend, a court should only deny leave to amend where it is apparent from the pleading itself that the plaintiff’s claims are legally barred. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 412-414.)

Here, Plaintiff’s causes of action may implicate a theory of Alienation of Affection, but they are also based on allegations of public disparagement and harassment which would appear independently actionable when liberally construed in her favor. Further, Defendant’s argument that each cause of action is protected by the litigation privilege inherently relies on evidence and facts which do not appear on the face of the Complaint and are thus improper for resolution upon demurrer. Lastly, Defendant’s argument that her actions as the head of the HOA are protected under Civil Code § 5800 is also improper grounds for demurrer. Civil Code § 5800 provides officers of common interest developments immunity from personal liability for decisions made in the context scope of their association duties. The application of this code section to bar Plaintiff’s cause of action necessarily requires the consideration of extrinsic evidence and is not proper for demurrer.

Still, the Court admonishes Plaintiff for her failure to file an amended pleading prior to her deadline to respond to Defendant’s demurrer. Plaintiff has provided no explanation of extenuating circumstances which would have prevented her from doing so. This Court is of the firm belief that plaintiffs should be diligent in the prosecution of their case regardless of its procedural disposition.

Accordingly, the demurrer as to each cause of action is SUSTAINED with leave to amend. The Court grants Plaintiff 20 days’ leave to file her amended Complaint.

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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 

Jessica Ray’s Demurrer came on regularly for hearing on March 7, 2025, 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 TO EACH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE CASE MANAGEMENT CONFERENCE SCHEDULED FOR MARCH 20, 2025 IS ADVANCED AND CONTINUED ON THE COURT’S OWN MOTION TO MAY 6, 2025 AT 9:00 AM.

DEFENDANT TO GIVE NOTICE.  

IT IS SO ORDERED.