Judge: Holly J. Fujie, Case: 23TCV00130, Date: 2023-05-11 Tentative Ruling

Case Number: 23TCV00130    Hearing Date: May 11, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant City National Bank (“Moving Defendant”)

            The Court has considered the moving papers.  No opposition papers were filed.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure section 1005, subdivision (b).

BACKGROUND

On January 4, 2023, Plaintiff Brivers LAX Snak Trak Vending (“Brivers” or “Plaintiff”) filed a complaint (the “Complaint”) alleging: (1) race and color discrimination; (2) retaliation; (3) failure to prevent discrimination and retaliation; (4) unfair business practices; (5) intentional infliction of emotional distress; and (6) fraud.

The Complaint alleges that Plaintiff was mistreated while trying to open a business account.  (See Complaint.)

On March 15, 2023, Moving Defendant filed a demurrer (the “Demurrer”) to the Complaint on the grounds that: (1) the Complaint fails to state facts sufficient to constitute a cause of action; (2) the pleading is uncertain; and (3) the person who filed the pleading does not have the legal capacity to sue. 

On May 3, 2023, Brivers filed a CIV-105 form amendment to the Complaint stating that Brivers was mistakenly identified as Plaintiff and Kimberley Tucker (“Tucker”) is Plaintiff’s correct name.

REQUEST FOR JUDICIAL NOTICE

            Moving Defendant’s Request for Judicial Notice is GRANTED.

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  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.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822

The arguments raised in the Demurrer about the legal insufficiency and uncertainty of the claims in the Complaint have merit regardless of Plaintiff’s identity.  The Complaint consists of one page of allegations concerning Plaintiff’s attempts to open a business account, but no causes of action are laid out in the pleading and there are no discernable theories of recovery alleged.  The Court finds that the Complaint is uncertain to a degree that prevents Moving Defendant from meaningfully assessing or responding to Plaintiff’s claims. 

The Court further notes that Plaintiff cannot appear or file pleadings in pro per and can only act through an attorney.  The Court therefore SUSTAINS the Demurrer with 20 days leave to amend.  Any amended complaint must be filed by a licensed attorney and cannot be filed by a non-attorney individual.

Moving party is ordered to give notice of this ruling. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 11th day of May 2023