Judge: Katherine Chilton, Case: 21STLC03984, Date: 2022-12-05 Tentative Ruling

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Case Number: 21STLC03984     Hearing Date: December 5, 2022    Dept: 25

PROCEEDINGS:      DEMURRER

MOVING PARTY:   Defendants Bloomfield Merchant Services, LLC, et al.

RESP. PARTY:         McElfish Law Firm, P.C.

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

Defendants Bloomfield Merchant Services, LLC, et al.’s Demurrer is PLACED OFF CALENDAR.

SERVICE: 

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NOT OK

[ X ] Correct Address (CCP §§ 1013, 1013a)                                     NOT OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NOT OK

OPPOSITION:          Filed on October 20, 2022.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of October 31, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On May 21, 2021, Plaintiff McElfish Law Firm, P.C. (“Plaintiff”) initiated this action against Defendants Bloomfield Merchant Services, LLC (“Bloomfield”) and Laith Yaldoo (“Yaldoo”) (collectively, “Defendants”) for (1) breach of contract; (2) common counts; (3) services rendered, (4) accounts stated, (5) open book account, and (6) quantum meruit.  The action arose out of Defendants’ alleged failure to pay Plaintiff for legal services rendered and costs advanced.

On October 3, 2022, Defendants filed the instant Demurrer (“Demurrer”).  On October 20, 2022, Plaintiff filed an Opposition to the Demurrer (“Opposition”).  No reply has been filed.

On November 2, 2022, the Court noted that the Demurrer contained several deficiencies and continued the hearing to allow Defendants an opportunity to correct these deficiencies.  (11-2-22 Minute Order.)  No corrections have been filed.

On November 16, 2022, the Court continued the trial date to August 8, 2023, along with corresponding discovery and motion cut-off deadlines.  (11-16-22 Order.)

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).)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.”  (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.)  Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue.  (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

III.            Discussion

On November 2, 2022, the Court noted the following deficiencies in the instant Demurrer:

1)     Notice of the Demurrer contains the wrong date, time, and address of the courthouse where the hearing on the Demurrer will take place and does not comply with California Rules of Court, rule 3.1110(b).

2)     Defendants have not filed proof that the Notice and the Demurrer were served on Plaintiff.

3)     Special demurrers are not allowed in limited jurisdiction civil actions.  (Code Civ. Proc. §92(c).)

(11-2-22 Minute Order.)

            To date, Defendants have not filed additional papers correcting these deficiencies.

For this reason, the Demurrer is PLACED OFF CALENDAR.

IV.           Conclusion & Order

For the foregoing reasons,

Defendants Bloomfield Merchant Services, LLC, et al.’s Demurrer is PLACED OFF CALENDAR.

Moving party is ordered to give notice.