Judge: Gail Killefer, Case: 22STCV24682, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV24682    Hearing Date: August 15, 2023    Dept: 37

MOVING PARTY:                 Defendant National Basketball Association (“NBA”)

OPPOSING PARTY:             Plaintiff McKinley Michael Robinson

RELIEF REQUESTED:         Demurrer

OPPOSITION:                        27 July 2023

REPLY:                                  8 August 2023

TENTATIVE:                         Defendant’s demurrer to the Second Amended Complaint is sustained without leave to amend. Defendant to give notice.

Background

On August 1, 2022, McKinley Michael Robinson (“Plaintiff”) filed a Complaint against Defendants National Basketball Association (“NBA”); Warner Brothers Studio; the Walt Disney Company; and American Broadcasting Company for Reparations.

On January 11, 2023, Plaintiff filed a First Amended Complaint (“FAC”).

May 8, 2023, Defendants the Walt Disney Company and American Broadcasting Company (“TWDC”) filed a demurrer to Plaintiff’s FAC. On June 5, 2023, the demurrer was sustained with leave to amend.

Plaintiff filed a Second Amended Complaint (“SAC”) “for monies to establish Black man owed, operated National T.V. Station.”

On August 9, 2023, the court sustained the demurrer of Defendants Walt Disney Company and American Broadcasting Company without leave to amend. 

On July 13, 2023, Defendant NBA filed a demurrer to the SAC. Plaintiff filed an opposition to Defendants’ demurrer on July 27, 2023.  Defendant NBA filed a reply on August 8, 2023.

Discussion

I.         Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly-pled facts as true, and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations, or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) 

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 complainant to show the Court that a pleading can be amended successfully. (Id.)

II.        Allegations in the SAC

The basis of this lawsuit is that each defendant shall pay [Plaintiff] $250,000,000.0 U.S. Dollars apiece so as to assist [Plaintiff] to create a National Black Peoples can watch Reflections of self in all manners, including Commercials, Products, etc. and establish the contributions that Black men/women made to the development of this Country.

(SAC at p. 3.)

III.      Demurrer to SAC[1]

Defendant NBA demurs to the SAC because it is uncertain and fails to state a claim for relief. Defendant NBA correctly asserts that the SAC contains no factual or legal allegations against it but only a demand that NBA “shall give Black businesses free commercials during live games” and give "opportunities to [black men] to help build their neighborhoods.” (SAC at p. 2.)

Plaintiff filed opposing papers but failed to serve the opposition on Defendant NBA. Plaintiff’s opposition also fails to establish how the SAC may be amended to state a cause of action against each Defendant. Defendant NBA filed a reply after reviewing the court’s online docket. In its reply, NBA again reiterates that the demurrer should be sustained without leave to amend as no cause of action is alleged against it.

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (CCP § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.) Under CCP § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing that they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) The court finds the SAC fails to state facts sufficient to constitute a cause of action against the Defendant NBA and is uncertain because it is ambiguous and unintelligible.

The Defendant NBA’s demurrer to the SAC is sustained without leave to amend.

Conclusion

The Defendant NBA’s demurrer to the Second Amended Complaint is sustained without leave to amend.  Defendant NBA to give notice.