Judge Holly J. Fujie, Case Number: 24STCV16814, Date: 2024-11-21 Tentative Ruling

RESPONDING PARTY: Plaintiffs Xavier Nailing and Philip Addington (“Plaintiffs”)

The Court has considered the moving papers, the opposition and the reply papers.

Plaintiffs’ complaint (the “Complaint”) alleges claims against Defendant for: (1) discrimination; (2) negligence; and (3) retaliation.

On October 21, 2024, the Defendant filed a demurrer (the “Demurrer”) to the Complaint. On October 23, 2024, Defendant filed a motion to strike. On November 5, 2024, Plaintiffs filed an opposition to the Demurrer. On November 12, 2024, Defendant filed a notice of non-opposition to the motion to strike. On the same day, Defendant filed a reply in support of the Demurrer.

Defendant requests that the Court take judicial notice of the document attached as Exhibit “A” (screenshot from the California Bar website) pursuant to Code of Civil Procedure sections 430.10 and 430.30, Evidence Code sections 452 and 453, and Rule of Court 3.1306(c), which indicates that Plaintiff Xavier Nailing is not an admitted attorney in the State of California.

Defendant’s counsel declares that he attempted to meet and confer with Plaintiffs over email, priority mail, and phone call but Plaintiffs failed to respond. (Riddick Decl. ¶ 3; Exh. 1.) Plaintiffs argue that the meet and confer efforts were not in good faith but fail to provide any evidence for this allegation. Therefore, the Court finds that the meet and confer requirement has been met.

When any ground for objection to a complaint appears on the face thereof, the objection on that ground may be taken by demurrer to the pleading. (Cal. Code Civ. Pro. § 430.30(a).) A demurrer to a complaint may be taken either to the whole complaint or to any of the causes of action stated therein. (Cal. Code. Civ. Pro. 430.50(a).) California Code of Civil Procedure §430.10 provides that a party may file a demurrer if “[]he pleading does not state facts sufficient to constitute a cause of action.” “A demurrer tests the sufficiency of the complaint by raising questions of law.” (Boxer v. City of Beverly Hills, 246 Cal. App. 4th 1212, 1217 (2016) (citing Aragon–Haas v. Family Security Ins. Services, Inc., 231 Cal.App.3d 232, 238 (1991).) “A general demurrer admits the truth of all material factual allegations of the complaint, but not the truth of contentions, deductions, or conclusions of fact or law.” (Id. (citing Moore v. Regents of University of California, 51 Cal.3d 120, 125 (1990).) In determining whether leave to amend should be granted, courts must consider “whether there is a reasonable possibility that the defect can be cured by amendment.” (Blank v. Kirwan, 39 Cal.3d 311, 318 (1985).)

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See Code Civ Proc., §§ 435-437.) A motion to strike can be made to strike irrelevant, false, or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court. (§ 436.)

In opposition, Plaintiffs argue that the demurrer is untimely because they were not served with the demurrer within 30 days after service of the Complaint and therefore it should be overruled. In reply, Defendant notes that Plaintiffs do not substantively oppose Defendant’s demurrer and the demurrer is not untimely. Further, Defendant contends that the demurrer should be considered because CCP 430.40 is permissive, not mandatory, by its plain language. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280; Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [permitting hearing of demurrers filed more than 30 days after service of complaint where no showing of prejudice].) (Reply at p. 2.) Moreover, Defendant asserts that even if this time period were mandatory, Plaintiffs failed to adequately serve the Complaint and Summons on Defendant until after July 17, 2024. Plaintiffs’ proof of service was invalid on July 17, 2024, because the clerk of court rejected Plaintiffs’ request for default based on this proof of service on September 19, 2024.

On October 2, 2024, Plaintiffs filed a proof of service showing service of the summons and complaint on August 13, 2024. On that same day, Defendant’s counsel filed a request for an automatic thirty (30) day extension of the time in which to file a demurrer, and thereafter filed this demurrer within nineteen (19) days, on October 21, 2024.

Due to the proof of service date discrepancies, the Court will exercise its discretion to consider the Demurrer. Moreover, Plaintiffs failed to provide any evidence showing any prejudice against them.

Defendant requests that the Demurrer be sustained as to all causes of action for failure to state facts sufficient to constitute causes of action pursuant to Cal. Code Civ. Proc. § 430.10(e). Moreover, Defendant contends that each cause of action is ambiguous and unintelligible pursuant to Cal. Code Civ. Proc. § 430.10(f). Additionally, Defendant asserts that the Demurrer should be sustained as to all causes of action because the Complaint is not signed by an attorney and instead was signed by one pro per plaintiff who cannot represent the other plaintiff. Further, Defendant contends that Plaintiffs do not directly assert any claim or request any relief.

As a preliminary matter, the Court notes that the Complaint is ambiguous, unintelligible, and uncertain. First, it is unclear what cause of action is being brought for “retaliation” as this is not an employment case. Second, the “discrimination” cause of action is also unclear because the only allegation about discrimination is as follows: “On 06/19/2024 the trustee called plaintiff addington he told plaintiff that the defendant said “PHILIP IS MENTALLY ILL AND SHOULD NOT BE GIVEN ANYTHING” . . . And the defendant discriminated against plaintiff addington adding credence to the defendant orchestrating bigotry towards plaintiff addington six years ago.” (Complaint at p. 5.) These are insufficient facts to state a cause of action for discrimination because they are conclusory and unclear as to what legal duty was owed under California law.

The negligence cause of action also fails because none of the elements is sufficiently alleged. Negligence requires the allegation of “duty, breach, causation and damages.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿ “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are limits to the generality with which a plaintiff is permitted to state his cause of action, and the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 [Internal quotations and ellipses omitted].) Here, the Complaint alleges “the defendant retaliated against plaintiff and is thus [n]egligent of her duty.” (Complaint at pp. 5-6.) This alleged fact is both confusing and conclusory and therefore insufficient to state a cause of action.

The Court also notes that it is unclear whether Xavier Nailing has any capacity to sue on these purported claims as it seems he is solely acting as Mr. Addington’s power of attorney and did not assert any claims on his behalf or seek any relief directly but only signed the Complaint. Just as the Court of Appeal in Drake v. Superior concluded “[defendant] may not use the statutory form power of attorney as a device to practice law for his principal,” here, if Mr. Nailing is solely acting as a representative based on the power of attorney statutory form, he would not have any standing to sue. (Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1832.) “By definition, one cannot appear in "propria" persona for another person.” (Id. at 1830.)

From the record, it is very unclear whether the Complaint can be amended to allege any valid claims against Defendant. Nevertheless, the Court will grant Plaintiffs the opportunity to amend the Complaint. It is not, however, yet persuaded that there is no reasonable possibility that Plaintiffs can cure the defects identified above. As “[l]eave to amend is liberally allowed,” the Court will grant Plaintiffs leave to file a First Amended Complaint. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348.) The Court warns Plaintiffs, however, that if they are unable to cure all of the major defects set forth above in a First Amended Complaint, and if Defendant were to file another demurrer thereto, the Court would be inclined to sustain any such demurrer without leave to amend.

Defendant moves to strike Plaintiffs’ Complaint in its entirety. (Mot. to Strike at p.1.) Plaintiffs failed to file any opposition. Nevertheless, as the Court SUSTAINED the demurrer WITH LEAVE TO AMEND, the motion to strike is DENIED as MOOT.

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.

Hon. Holly J. Fujie

Judge of the Superior Court