Judge: Katherine Chilton, Case: 21STLC01083, Date: 2022-10-17 Tentative Ruling

Case Number: 21STLC01083     Hearing Date: October 17, 2022    Dept: 25

PROCEEDINGS:      DEMURRER

MOVING PARTY:   Defendant Cassandra A. Sorto

RESP. PARTY:         None

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

Defendant Cassandra A. Sorto’s Demurrer is DENIED.

SERVICE: 

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[ X ] Correct Address (CCP §§ 1013, 1013a)                                     OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of October 12, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of October 12, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On February 8, 2021, Plaintiff Ashley Gonzalez (“Plaintiff”) filed an action against Defendants Cassandra A. Sorto (“Sorto”) and Rene Martinez (“Martinez”), (collectively “Defendants”) for negligence.  The action arose out of an alleged automobile accident on May 22, 2019.

On September 29, 2021, upon the request of the Plaintiff, the Court entered default against Defendant Sorto.  (9-29-21 Request for Entry of Default/Judgment.)  Plaintiff’s Request for Default Judgment was rejected on September 7, 2022.

On August 8, 2022, the Court placed trial off calendar.  (8-8-22 Minute Order.)

On September 8, 2022, Defendant Sorto filed the instant Demurrer.

No opposition has been filed.

II.              Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint.  (Code of Civ. Proc. § 430.10.)  There are two types of demurrers – general demurrers and special demurrers.  (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction.  (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.)  Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered.  (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].”  (Blank, 39 Cal.3d at 318.)  It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.”  (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him.  (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.)  The face of the complaint includes exhibits attached to the complaint.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)  "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence."  (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written.  (Code Civ. Proc., § 430.10(f).)  However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer.  (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc., § 430.41(a)(2).)  Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a)(3).)

III.            Discussion

First, Defendant Sorto cannot participate in the case because default has been entered against her.  Entry of default cuts off the defendant’s ability to answer the complaint or otherwise participate in the litigation.  Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal. App. 3d 257, 262-63 (defendants’ demurrer was a legal nullity . . .. since defendants’ default had already been entered, they had no standing to file any responsive pleading . . . “).

In addition, Defendant’s demurrer makes no sense.  She seems to attack her own answer (which has not even been filed) and its affirmative defenses, not the complaint.  (Mot. pp. 1-2.)  Defendant cannot demur to her own unfiled Answer.

Defendant also has filed a defective Notice of Hearing, as it contains the wrong address for the courthouse where the hearing will take place.

Finally, there is no declaration regarding Defendant’s efforts to meet and confer regarding a potential Demurrer.

For these reasons and others, the Court DENIES Defendant Sorto’s Demurrer.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Cassandra A. Sorto’s Demurrer is DENIED.

Moving party is ordered to give notice.