Judge: Gary I. Micon, Case: 23CHCV02813, Date: 2024-02-29 Tentative Ruling

Case Number: 23CHCV02813    Hearing Date: March 6, 2024    Dept: F43

Dept. F43

Date: 3-6-24

Case # 23CHCV02813, Elliott Wolfe vs. Judith Wolfe, et al.

Trial Date: N/A

DEMURRER

MOVING PARTY: Defendants Jodi Rosen, David Rosen, Michelle Fluke, and Michael Fluke

RESPONDING PARTY: Plaintiff Elliott Wolfe filed a now-stricken first amended complaint late on February 27

RELIEF REQUESTED

Demurrer to the Complaint

·         1^st Cause of Action for Assault

·         2^nd Cause of Action for Battery

·         3^rd Cause of Action for Trespass to Chattels

·         4^th Cause of Action for Conversion

·         5^th Cause of Action for Intentional Infliction of Emotional Distress

·         6^th Cause of Action for Elder Abuse

RULING: Demurrer sustained with leave to amend.

SUMMARY OF ACTION

On September 19, 2023, Plaintiff Elliott Wolfe (Plaintiff) filed a complaint with six causes of action for Assault, Battery, Trespass to Chattels, Conversion, Intentional Infliction of Emotional Distress, and Elder Abuse. It is unclear from the complaint who Defendants Jodi Rosen, David Rosen, Michelle Fluke, and Michael Fluke (Defendants) are or what their relationship is to Plaintiff.

Defendants filed their demurer on October 24, 2023. Plaintiff filed a first amended complaint on February 27. At the hearing on Defendant Judith Wolfe’s demurrer on February 29, 2024, the Court found that the amended complaint was untimely filed and did not comply with CCP 477(a). The Court ordered the amended complaint stricken.

ANALYSIS

Defendants bring a demurrer to the First through Sixth Causes of Action on the basis that they fail to state a cause of action and are uncertain.

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.)

All of Plaintiff’s causes of action are devoid of specific facts against Defendants. It is impossible to tell from Plaintiff’s complaint what Plaintiff is alleging happened. Rather than state facts, Plaintiff has made conclusory statements under each cause of action. These conclusory statements seem designed to simply check the boxes for the requirements of the causes of action, and do not state any facts specific to Plaintiff’s case.

The Court sustains Defendants’ demurrer on the basis that Plaintiff’s complaint fails to state facts sufficient to constitute any causes of action against Defendants.

Defendants’ demurrer is sustained with leave to amend.

Plaintiff has 20 days to file an Amended Complaint.

Moving party to give notice.