Judge: Gregory Keosian, Case: 23STCV13104, Date: 2023-09-11 Tentative Ruling

Case Number: 23STCV13104    Hearing Date: January 22, 2024    Dept: 61

Defendants Joseph H. Low IV and Joseph H. Low, Inc.’s Demurrer to the First Amended Complaint is OVERRULED.

I.                   DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. V. Mirda (2007) 147 Cal.App.4^th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”]

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4^th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5^th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4^th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants Joseph H. Low IV and Joseph H. Low, Inc. (Defendants) demurrer to the First Amended Complaint (FAC), seeking a stay of this matter in favor of their later-filed interpleader action, and arguing that Plaintiffs’ claims are substantively deficient. (Demurrer at pp. 4–7.)

Defendants’ demurrer is deficient. As explained in ruling upon Defendants’ prior demurrer, the doctrine of exclusive concurrent jurisdiction provides no basis to stay the present action in favor of a later-filed case. (See Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786–787.) Also in the previous ruling, this court directed Defendants to Code of Civil Procedure § 386, which states:

After any such complaint or cross-complaint in interpleader has been filed, the court in which it is filed may enter its order restraining all parties to the action from instituting or further prosecuting any other proceeding in any court in this state affecting the rights and obligations as between the parties to the interpleader until further order of the court.

(Code Civ. Proc. § 386, subd. (f).) Defendants may thus seek an order restraining the parties from further prosecuting this action in the interpleader case. Defendants, once again, do not explain why this avenue is unavailable to them.

Defendants’ substantive argument is ill-explained and unpersuasive. They claim that Plaintiffs have failed to endorse the settlement draft (Demurrer at pp. 5–6), but there is no matter in the pleading or judicially noticeable materials that support this allegation, beyond Defendants’ allegations in the interpleader action. Defendants’ argument that Plaintiffs cannot enforce their attorney lien against them without a judicial determination on the validity and amount of the lien against the client is inapposite, as the client here, Alma Nunez, is a party to this action. (Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974, 978.)

The demurrer is therefore OVERRULED.