Judge: Joel L. Lofton, Case: 22STCV00776, Date: 2023-08-30 Tentative Ruling
Case Number: 22STCV00776 Hearing Date: August 30, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: August 30, 2023 TRIAL
DATE: No date set.
CASE: DEJUAN FERDINAND
v. BOYS & GIRLS CLUB OF PASADENA; and DOES 2 through 25, inclusive.
CASE NO.: 22AHCV00776
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant Boys & Girls Club of
Pasadena (“Defendant”)
RESPONDING PARTY: Plaintiff
Dejuan Ferdinand
SERVICE: Filed June 12, 2023
OPPOSITION: Filed August 17, 2023
REPLY: Filed August 23, 2023
RELIEF
REQUESTED
Defendant demurrers to Plaintiff’s
complaint and moves to strike Plaintiff’s allegations pertaining to a cover-up
and Plaintiff’s prayer for treble damages.
BACKGROUND
This case arises out of Plaintiff’s claim that
he is the victim of sexual abuse dating back to 1973. Plaintiff brings this
revival action under Code of Civil Procedure section 340.1 as a plaintiff who
is over 40 years old and was sexually abused as a child. Plaintiff filed a
first amended complaint on March 22, 2023, alleging six causes of action for
(1) negligence, (2) negligence, (3) negligent hiring, retention, and
supervision, and (4) negligent hiring, retention, and supervision.
TENTATIVE RULING
Defendant’s
demurrer is OVERRULED.
Defendant’s
motion to strike Plaintiff’s allegations of a cover-up and prayer for punitive
damages is GRANTED.
LEGAL STANDARD
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Additionally, a
special demurrer to a complaint may be brought on the ground the pleading is
uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based
on uncertainty is disfavored and will be strictly construed even when the
pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 616.) A demurrers based on uncertainty 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.)
Motion to Strike
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part
thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The
court may, upon a motion, or at any time in its discretion, and upon terms
it deems proper, strike any irrelevant, false, or improper matter inserted in
any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may
also strike all or any part of any pleading not drawn or filed in conformity
with California law, a court rule, or an order of the court. (Code Civ.
Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one
that is not essential to the statement of a claim or defense; is neither
pertinent to nor supported by an otherwise sufficient claim or defense; or a
demand for judgment requesting relief not supported by the allegations of the
complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
Defendant
demurrers to Plaintiff’s complaint by seeking to challenge the sufficiency of
the certificates of merit and the certificates of corroboration submitted in
support of this case.
Code
of Civil Procedure section 340.1 (“section 340.1”), subdivision (k), provides:
“The
failure to file certificates in accordance with this section shall be grounds
for a demurrer pursuant to Section 430.10 or a motion to strike pursuant to
Section 435.”
Defendant
first argues that it should have been provided a copy of the relevant
certificates prior to the filing of this demurrer. However, the language of
section 340.1, subdivision (i), provides: “In any action subject to subdivision
(f), a defendant shall not be served, and the duty to serve a defendant with
process does not attach, until the court has reviewed the certificates of merit
filed pursuant to subdivision (g) with respect to that defendant, and has
found, in camera, based solely on those certificates of merit, that there is
reasonable and meritorious cause for the filing of the action against that
defendant. At that time, the duty to serve that defendant with process shall
attach.” The language presented demonstrates that the certificates of merit are
to be reviewed before service of process.
Further,
section 340.1, subdivision (k), provides that “[t]he failure to file
certificates in accordance with this section” is grounds for demurrer.
Defendant glosses over the language that “failure to file” and rather
emphasizes the “in accordance with this section” language to support the
proposition that it is entitled to challenge every aspect of the certificates. However,
case law surrounding this issue pertains to circumstances where the plaintiff
failed to comply with the procedural requirement of filing the certificates
rather than the substantive issues of the sufficiency of the certificates.
(See, e.g., Jackson v. Doe (2011) 192 Cal.App.4th 742, 751-53.)
The court emphasizes it is not deciding whether or not Defendant is entitled to
view the certificates of merit, but rather stating that cases on demurrers for
claims based on section 340.1 typically were based on plaintiff’s failure to
file any certificates at all.
Even
assuming that Defendant is correct that it may challenge the contents of the
certificate of merit, it fails to demonstrate on what grounds it would
successfully challenge the certificates. Section 340.1, subdivision (g),
provides: “Certificates
of merit shall be executed by the attorney for the plaintiff and by a licensed
mental health practitioner selected by the plaintiff declaring, respectively,
as follows, setting forth the facts which support the declaration”. Defendants
latch on to the language that the certificates must set “for the facts which
support the declaration” and argue it should be allowed to review the certificates
for their factual sufficiency.
Defendant’s
arguments are unavailing. First, section 340.1, subdivision (i) puts the onus
on reviewing the certificates on the court not the parties. Additionally,
Defendant is highlighting language that benefits its position while ignoring
the context the requirements are placed in. Section 340.1, subdivision (g),
sets forth the requirements for the certificates as follows:
“(1) That the attorney has reviewed the facts of
the case, consulted with at least one mental health practitioner who the
attorney reasonably believes is knowledgeable of the relevant facts and issues
involved in the particular action, and concluded on the basis of that review
and consultation that there is reasonable and meritorious cause for the filing
of the action.
(2) That the mental health practitioner consulted
is licensed to practice and practices in this state and is not a party to the
action, that the practitioner is not treating and has not treated the
plaintiff, and that the practitioner has interviewed the plaintiff and is
knowledgeable of the relevant facts and issues involved in the particular
action, and has concluded, on the basis of the practitioner’s knowledge of the
facts and issues, that in the practitioner’s professional opinion there is a
reasonable basis to believe that the plaintiff had been subject to childhood
sexual abuse.”
The
relevant sections do not require Plaintiff to submit certificates that set the
forth the facts detailing the underlying events but rather require the attorney
and mental health practitioner to, among other things, attest they are knowledgeable
about the relevant facts and that there is reasonable and meritorious cause
(required from the attorney) or a reasonable basis to believe that the
plaintiff was subject to childhood sexual abuse (required from the mental health
practitioner). Defendant does not provide that it is able to contest that the
attorney or mental health practitioner is not knowledgeable about the facts or does
not subjectively believe Plaintiff’s case is meritorious.
Defendant
contests Plaintiff’s certificate of corroborative fact. However, as previously
stated, demurrers based certificates of merits have typically been in cases
where no certificates were filed. Further, Section 340.1, subdivision (o),
specifically provides: “The court shall keep under seal and confidential from
the public and all parties to the litigation, other than the plaintiff, any and
all certificates of corroborative fact filed pursuant to subdivision (m).” The
language here expressly makes certificates of corroboration confidential to all
parties, which includes Defendant. Defendant has not established it is entitled
to challenge the sufficiency of the certificates of corroboration nor that such
a challenge is a sufficient basis for a demurrer.
Lastly, Section
340.1, subdivision (p), provides: “Upon the favorable conclusion of the
litigation with respect to any defendant for whom a certificate of merit was
filed or for whom a certificate of merit should have been filed pursuant to
this section, the court may, upon the motion of a party or upon the court’s own
motion, verify compliance with this section by requiring the attorney for the
plaintiff who was required by subdivision (g) to execute the certificate to
reveal the name, address, and telephone number of the person or persons
consulted with pursuant to subdivision (g) that were relied upon by the
attorney in preparation of the certificate of merit.” Pursuant to section
340.1, subdivision (p), a court may require plaintiff to provide defendants
with the disclosure of information relied on for the certificates of merit “[u]pon
favorable conclusion of the litigation”. Defendant is seeking to enforce this
relief at the pleading stage.
Motion
to Strike
Defendant moves
to strike Plaintiff’s allegations that Defendant engaged in a cover-up and
Plaintiff’s prayer for treble damages. Section 340.1, subdivision (b)(1),
provides: “In an action described in subdivision (a), a person who is sexually
assaulted and proves it was as the result of a cover up may recover up to
treble damages against a defendant who is found to have covered up the sexual
assault of a minor, unless prohibited by another law.”
In K.M.
v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 736-38, the
Court held that the treble damages provision in section 340.1, subdivision (b),
applied prospectively rather than retroactively. Plaintiff’s complaint does not
allege Defendant prospectively engaged in a cover-up sufficient to warrant a
prayer for punitive damages. Further, Plaintiff does not address this issue in
his opposition.
Defendant’s
motion to strike is granted.
CONCLUSION
Defendant’s
demurrer is OVERRULED.
Defendant’s
motion to strike Plaintiff’s allegations of a cover-up and prayer for punitive
damages is GRANTED.
Defendant to
file a RESPONSIVE PLEADING within 20 days’ notice of this ruling.
Dated: August 30,
2023 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court