Judge: Katherine Chilton, Case: 21STLC02852, Date: 2022-10-10 Tentative Ruling

Case Number: 21STLC02852     Hearing Date: October 10, 2022    Dept: 25

PROCEEDINGS:      DEMURRER

MOVING PARTY:   Plaintiff/Cross-Defendant Eli’s Collision Repair of South Bay, Inc.

RESP. PARTY:         Defendant/Cross-Complainant Gannon Brown

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

Plaintiff/Cross-Defendant Eli’s Collision Repair’s Demurrer to the First Amended Cross-Complaint’s third and fourth causes of action is OVERRULED AS MOOT.

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:          Filed on August 24, 2022.                                    [   ] Late                      [   ] None

REPLY:                     Filed on August 30, 2022.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On April 12, 2021, Plaintiff Eli’s Collision Repair of South Bay, Inc., also known as Eli’s Collision Repair III, a California Corporation (“Plaintiff” or “Eli’s”) filed an action against Gannon Brown (“Brown”) and USAA Casualty Insurance Company, a Texas Corporation (“USAA”), (collectively “Defendants”) for (1) civil damages for theft, (2) conversion, (3) claim and delivery, (4) restitution (unjust enrichment), (5) breach of contract, (6) fraud (intentional misrepresentation), and (7) negligence.

On December 8, 2021, the Court denied Defendant Brown’s Motion to Quash Service of Summons and ordered him to file and serve a responsive pleading within 20 days of the order.      (12-8-21 Minute Order.)

On December 28, 2021, Defendant Brown filed a Demurrer to the first and third causes of action in Plaintiff’s Complaint.  On February 14, 2022, the Court overruled Defendant Brown’s Demurrer.  (2-14-22 Minute Order.)

On February 17, 2022, Defendant Brown filed an Answer to the Complaint and a Cross-Complaint against Plaintiff/Cross-Defendant Eli’s.  On March 22, 2022, Defendant/Cross-Complainant Brown filed a First Amended Cross-Complaint (“FACC”) against Plaintiff/Cross-Defendant Eli’s for (1) violation of the Magnuson-Moss Warranty Act, (2) breach of common law warranty, (3) promissory fraud, and (4) breach of contract.  Plaintiff/Cross-Defendant sought an automatic 30-day extension to file a demurrer to the First Amended Cross-Complaint.

On June 24, 2022, Plaintiff/Cross-Defendant Eli’s filed this Demurrer to the First Amended Cross-Complaint’s first, third, and fourth causes of action.  On August 24, 2022, Defendant/Cross-Complainant Brown filed an Opposition to the Demurrer, and on August 30, 2022, Plaintiff/Cross-Defendant Eli’s filed a Reply to the Opposition.

On September 7, 2022, the Court sustained Plaintiff/Cross-Defendant’s Demurrer to the FACC’s first cause of action for violation of the Magnuson-Moss Warranty Act with 25 days’ leave to amend.  (9-7-22 Minute Order.)  On October 3, 2022, Defendant/Cross-Complainant filed a Second Amended Cross-Complaint.

Furthermore, on September 7, 2022, the Court continued the hearing on the Demurrer to the FACC’s third and fourth causes of action and ordered Plaintiff/Cross-Defendant to file supplemental papers showing its efforts to meet and confer as to these causes of action.  (9-7-22 Minute Order.)  On September 15, 2022, Plaintiff/Cross-Defendant filed Additional Declaration of Bryan Thomas Re: Meet & Confer in Support of Demurrer.

II.              Legal Standard & Discussion

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).)

When a party files an amended complaint after a demurrer is filed, but before it is decided, the demurrer must be overruled as moot.  (JKC3H8 v. Colton, (2013) 221 Cal.App.4th 468, 477.)

Here, Defendant/Cross-Complainant has filed a Second Amended Cross-Complaint.  Thus, the Demurrer is overruled as moot as to the third and fourth causes of action.

III.            Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Defendant Eli’s Collision Repair’s Demurrer to the First Amended Cross-Complaint’s third and fourth causes of action is OVERRULED AS MOOT. Plaintiff/Cross-Defendant is ordered to file a response to the Second Amended Cross-Complaint within twenty (20) days of notice of this order.

Moving party is ordered to give notice.