Judge: H. Jay Ford, III, Case: 22SMCV00099, Date: 2023-01-26 Tentative Ruling

Case Number: 22SMCV00099    Hearing Date: January 26, 2023    Dept: O

22SMCV00099 SCOTT BURNS vs PETER DANTE

Defendant Dante's Demurrer and Motion to Strike to the FAC are OVERRULED AND DENIED.  Dante to answer in 20 days.

 Plaintiff alleges Defendant physically intimidated him, chased him through the restaurant, called him "stupid," "sissy" and referred to Plaintiff' as having a "Jew nose" and became so physically menacing that the restaurant owner's daughter was forced to intervene.  See FAC, paras. 6-10.  Defendant fails to articulate why these allegations are insufficient to state Plaintiff's alleged causes of action based on applicable law.  Merely stating that Plaintiff fails to allege the elements of the claim is insufficient to sustain a demurrer.  In addition, it is clear from Plaintiff's allegations what wrongdoing is alleged against Defendant.  

 The Court has discretion to deny a motion where the moving party fails to relate law to the facts of the case.  See Quantum Cooking Concepts, Inc. v LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 931, 933 (moving party's one-page memorandum merely quoted statutory provisions authorizing motion and contained no elements required by Cal. Rules of Court, Rule 3.1113(b): no statement of facts or supporting evidence or arguments).  The Court has "no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case."  Id. at p. 934.  As the Quantum Court pointed out, California Rules of Court 3.1113(b) “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide.” Id.