Judge: Gary I. Micon, Case: 23CHCV02802, Date: 2024-03-07 Tentative Ruling

Case Number: 23CHCV02802    Hearing Date: March 7, 2024    Dept: F43

Dept. F43

Date: 3-7-24

Case # 23CHCV02802, Onymar S.R.L. vs. Cesar’s Marble & Granite Inc.

Trial Date: N/A

DEMURRER

MOVING PARTY: Defendant Cesar’s Marble & Granite Inc.

RESPONDING PARTIES: Plaintiff Onymar S.R.L

RELIEF REQUESTED

Demurrer

·         Entire Complaint

RULING: Demurrer is overruled

SUMMARY OF ACTION

This is a collection case in which Plaintiff Onymar S.R.L. (Plaintiff) is seeking to recover monies from Defendant Cesar’s Marble & Granite Inc. (Defendant) due on an open book for account stated and at a reasonable value. Plaintiff filed this action on September 15, 2023. On October 25, 2023, Defendant filed its demurrer. Plaintiff filed its opposition on February 20, 2024. No reply has been filed.

ANALYSIS

Request for Judicial Notice: Defendant requests that the Court take judicial notice of screenshots from the California Secretary of State’s website showing that no results appeared when a search was conducted for Onymar. Plaintiff objects to this request for judicial notice because Defendant is asking the Court to draw a conclusion from the lack of search results rather than admitting a fact. Plaintiff also argues that Defendant does not provide any description of who conducted the search or when or how it was conducted. The Court agrees that Defendant’s request is insufficient. Defendant asks the court to judicially notice these documents under Evidence Code section 452, subdivision (c), which applies to official acts of the legislative, executive, and judicial departments of the state or federal government. However, it has failed to explain how these screenshots qualified under that section. The request for judicial notice is denied.

Defendant brings a demurrer to Plaintiff’s entire complaint on the basis that Plaintiff does not have the legal capacity to sue because Plaintiff is a foreign entity not registered with the California Secretary of State and because Plaintiff’s complaint fails to state facts sufficient to constitute a cause of action.

Plaintiff opposes Defendant’s demurrer because it argues that standing cannot be raised on demurrer because it does not challenge factual allegations. Plaintiff also opposes the demurrer on the basis that Plaintiff’s complaint sufficiently pleads all necessary elements of the causes of action.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Plaintiff argues that issues of standing are improper on demurrer. However, “Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Martin v. Bridgeport Community Ass’n (2009) 173 Cal.App.4th 1024, 1031.) That being said, to raise an issue of standing, it must be based on a matter of which the Court may take judicial notice. The Court declined to take judicial notice of the screenshots from the search page of the Secretary of State’s website. Therefore, Defendant has not provided sufficient basis to demur on the basis of lack of capacity to sue. (See Evidence Code § 453(b).)

Defendant also indicated in its notice of demurrer that it was demurring on the basis that Plaintiff’s complaint failed to state facts sufficient to constitute a cause of action. However, Defendant’s memorandum of points and authorities does not contain any arguments supporting this basis for demurrer.

Based on the foregoing, Defendant’s demurrer is overruled.

Moving party to give notice.